United States District Court for the Southern District of Florida

September 8, 2022, Decided; September 8, 2022, Entered on Docket

Civil Action No. 22-22299-Civ-Scola

Reporter

2022 U.S. Dist. LEXIS 162359 *; 2022 WL 4111079

Cameron Kelts and Jeffery Sullivan, Plaintiffs, v. King Ocean Services, Ltd. and Oscar Calderon, Defendants.

Core Terms

bill of lading, carrier, custody, terms, truck, ship, motion to dismiss, Paramount

Counsel:  [*1] Mr. Cameron Kelts, Plaintiff, Pro se, Seffner, FL.

Jeffery Sullivan, Plaintiff, Pro se, Seffner, FL.

For King Ocean Services, Ltd., Oscar Calderon, Defendants: Charles Gullette De Leo, Ryon Lyndon Little, LEAD ATTORNEYS, Jan Michael Kuylenstierna, De Leo & Kuylenstierna P.A., Miami, FL.

Judges: Robert N. Scola, Jr., United States District Judge.

Opinion by: Robert N. Scola, Jr.

Opinion

Order

This matter is before the Court on Defendant King Ocean Services, Ltd.’s, motion to dismiss. (ECF No. 8.) The Plaintiffs filed a response to the motion (ECF No. 10), and the Defendant filed a reply memorandum in support of its motion (ECF No. 13). After careful consideration of the briefing, the record, and the relevant legal authorities, the Court grants the Defendant’s motion. (ECF No. 8.)

1. Background

Plaintiffs Cameron Kelts and Jeffrey Sullivan, proceeding pro se, assert counts for civil theft under Florida Statutes Section 812.014 and conversion under Florida common law against Defendant King Ocean. (Compl., ECF No. 1-2, ¶¶ 43-49, 50-57.) The Plaintiffs additionally plead one count for fraudulent transfer against Defendant Oscar Calderon, who has not yet been served with the complaint and is allegedly a “citizen of Costa Rica.” (Id. ¶¶ 4, 51-65.) The Plaintiffs [*2]  filed their complaint in Florida state court, and Defendant King Ocean timely removed after receiving service of process. (Not. of Removal, ECF No. 1.)

The Plaintiffs’ allegations, at heart, are simple. The Plaintiffs contracted with King Ocean to ship a truck from Florida to Costa Rica. (Compl. ¶¶ 10-12.) King Ocean did, in fact, ship the truck to Costa Rica. (Id. ¶ 12.) After the truck was delivered to Costa Rica and discharged from the ship but while it remained in King Ocean’s custody, the truck was wrongfully released to Defendant Calderon without the Plaintiffs’ approval. (Id. ¶ 27.) The Plaintiffs filed a criminal complaint against the Defendants in Costa Rica and this civil complaint against the Defendants in Florida for the wrongful release of the truck. (Id. ¶¶ 40-41.)

In support of their claims, the Plaintiffs attach as Exhibit 1 to the complaint the front side of the bill of lading for King Ocean’s shipping of the truck to Costa Rica. (Id. ¶ 12, Ex. 1.) King Ocean attaches to its motion to dismiss the remainder of the referenced bill of lading. (Mot., ECF No. 8, at 2 n.4, Ex. 1; Not., ECF No. 18, Ex. A.) The rear side of the bill of lading contains the following “Clause Paramount” [*3]  regarding the King Ocean’s liability:

This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of 1936 of the United States of America, as amended (“COGSA“) which shall apply to the Goods whether the Goods carried on or under deck to carriage of the Goods to, from, or between U.S. ports or between non-U.S. ports before the Goods are loaded on and after they are discharged from the vessel and throughout the entire time that they are in custody of the Carrier, whether acting as carrier, bailee, terminal operator, inland carrier, stevedore. Carrier shall be entitled to any and all defenses and limitations of liability provided under COGSA or any other compulsorily applicable law or for any and all claims arising out of Carrier’s custody or control of the Goods . . . .

(Not., Ex. A.) The front of the bill of lading establishes that “[t]he goods [are] to be delivered at the aforementioned port of discharge or place of delivery, whichever is applicable, subject always to the exceptions, limitations, conditions and liberties set out on the reverse side hereof to which the Shipper and Consignee agree to accepting this Bill of Lading.” (Id.) (emphasis added). The reverse side of the bill [*4]  of lading also establishes that the “Merchant,” by “accepting this bill of lading, whether or not signed by Merchant, Merchant expressly accepts and agrees that the receipt, custody, carriage, delivery and any transshipping of the Goods are subject to the terms appearing on the face and back hereof.” (Id.) A “Merchant” is further defined as “includ[ing] the shipper, holder, consignee, receiver of Goods, [or] any Person owning or entitled to the possession of the Goods or of this Bill of Lading.” (Id.)

King Ocean now moves to dismiss the two counts against it for failure to state a claim upon which relief can be granted, asserting that the Plaintiffs’ claims for civil theft and conversion are preempted by the federal Carriage of Goods at Sea Act (“COGSA,” codified at 46 U.S.C. § 30701 Note), based on the express terms of the bill of lading. (Mot. at 1.)

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil Procedure 12(b)(6), must accept all of the complaint’s allegations as true, construing them in the light most favorable to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, a plaintiff must nevertheless articulate [*5]  “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal punctuation omitted) (quoting Fed. R. Civ. P. 8(a)(2)). A court must dismiss a plaintiff’s claims if she fails to nudge her “claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Regardless of a plaintiff’s allegations, “the court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

3. Analysis

King Ocean argues that the Plaintiffs’ claims are preempted by COGSA based on the plain terms of the Clause Paramount in the bill of lading. (Mot. at 15-19.) The Plaintiffs, in response, attempt to disavow the bill of lading, stating that they never signed it. (Resp. at 3.) King Ocean, in reply, argues that the terms of the bill of lading confirm that the Clause Paramount applies because, by shipping goods under the bill of lading, the party contracting with King Ocean is put on notice of and accepts the terms of the bill [*6]  of lading regardless of whether that party signs the bill of lading. (Reply at 3.)

The Court finds that the bill of lading’s terms govern the parties’ relationship, those terms expressly call for COGSA to apply to the circumstances detailed in the Plaintiffs’ complaint, and the Plaintiffs’ claims for civil theft and conversion are therefore preempted by COGSA.

The Eleventh Circuit holds that, where COGSA applies, it provides the plaintiff with an exclusive remedy. Polo Ralph Lauren, L.P. v. Tropical Shipping & Const. Co., 215 F.3d 1217, 1220 (11th Cir. 2000) (“We conclude that because COGSA applies in this case, it provides [the plaintiff’s] exclusive remedy.”). A plaintiff therefore may not plead tort claims under state law where a COGSA claim would be appropriate. Id. (“We have found no cases in which a court has allowed a tort claim to proceed when COGSA applies.”).

COGSA allows parties to extend its application by contract. Carriage of Goods by Sea Act, § 7, 46 U.S.C. § 30701 Note (“Nothing contained in this Act shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and subsequent [*7]  to the discharge from the ship on which the goods are carried by sea.”). The Eleventh Circuit has confirmed that, by its own terms, COGSA allows the parties to extend its application to times when shipments of goods are in the custody of the carrier. Groupe Chegaray/V. De Chalus v. P&O Containers, 251 F.3d 1359, 1364 (11th Cir. 2001) (holding that COGSA applied to goods in the custody of the carrier, even though the goods were lost after being discharged from the ship, because the “bill of lading explicitly incorporates COGSA as ‘paramount throughout’ the time the goods are in the custody of [the carrier].”). The Supreme Court has confirmed this, as well. Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 29, 125 S. Ct. 385, 160 L. Ed. 2d 283 (2004) (“As COGSA permits, [the defendant carrier] in its bill of lading chose to extend the default rule to the entire period in which the machinery would be under its responsibility, including the period of the inland transport.”).

The Plaintiffs incorporated the bill of lading in their complaint. (Compl. ¶ 12, Ex. 1.) They therefore may not disclaim the terms and conditions contained in the bill of lading, and King Ocean may properly rely on the bill of lading’s terms on a motion to dismiss. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (“A court may consider only the complaint itself and any documents referred to in the complaint which are central to the claims.”). [*8] 

Under the express terms of the bill of lading, COGSA applies as long as the truck was in King Ocean’s custody. (Not., Ex. A); Groupe Chegaray, 251 F.3d at 1364. And the bill of lading makes clear that, by shipping goods with King Ocean, the Plaintiffs accepted the bill of lading’s terms and conditions contained on the reverse side. (Not., Ex. A); Big Blue Inc. v. Hapag-Lloyd Aktiengesellschaft, No. 08-22753-CIV, 2009 U.S. Dist. LEXIS 143197, 2009 WL 10712209, at *3 (S.D. Fla. July 23, 2009) (Bandstra, Mag. J.) (finding that “the Bill of Lading . . . attached to the second amended complaint contractually bind[s] plaintiff to the terms and conditions on the reverse side of the Bill of Lading.”). Therefore, the bill of lading’s Clause Paramount is enforceable against the Plaintiffs here, and COGSA applies while the truck was in King Ocean’s custody after discharge. Big Blue, 2009 U.S. Dist. LEXIS 143197, 2009 WL 10712209, at *3.

The Plaintiffs’ claims against King Ocean are based on circumstances that occurred while the truck was in King Ocean’s custody. (Compl. ¶¶ 12, 43-49, 50-57.) Because COGSA contractually applies to that period and provides an exclusive remedy where it applies, Plaintiffs’ claims for civil theft and conversion fail to state a claim upon which relief may be granted as a matter of law. Polo Ralph Lauren, 215F.3d  at 1220; Big Blue, 2009 U.S. Dist. LEXIS 143197, 2009 WL 10712209, at *2-3. Plaintiffs may plead a claim against King Ocean only under COGSA on these facts.

4. Conclusion

For the reasons [*9]  stated above, the Court grants King Ocean’s motion to dismiss (ECF No. 8) and dismisses counts one and two of the Plaintiffs’ complaint against Defendant King Ocean without prejudice.

Done and ordered in Miami, Florida, on September 8, 2022.

/s/ Robert N. Scola, Jr.

Robert N. Scola, Jr.

United States District Judge

End of Document

United States District Court for the Northern District of Texas, Dallas Division

August 2, 2022, Decided; August 2, 2022, Filed

Case No. 3:22-cv-00324-N-BT

Reporter

2022 U.S. Dist. LEXIS 159625 *; 2022 WL 4073352

GEOFFREY WILLIAM WATTIKER, Plaintiff, v. AMERICAN AUTO HAULERS, INC., et al., Defendants.

Subsequent History: Adopted by, Dismissed by, Without prejudice, Judgment entered by Wattiker v. Am. Auto Haulers, Inc., 2022 U.S. Dist. LEXIS 159467 (N.D. Tex., Sept. 2, 2022)

Core Terms

Insurer, summary judgment, discovery, Partial, summary judgment motion, strict liability claim, premature, pro se, tortfeasor’s

Counsel:  [*1] Geoffrey William Wattiker, Plaintiff, Pro se, Dallas, TX.

For American Auto Haulers Inc, Ahmad Noureddine, Defendants: Randall G Walters, LEAD ATTORNEY, Walters Balido & Crain LLP, Dallas, TX.

Judges: REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE.

Opinion by: REBECCA RUTHERFORD

Opinion

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court are a Motion to Dismiss (ECF No. 7) filed by Defendants Progressive Insurance Company, Progressive Commercial Casualty Company, and United Financial Casualty Co. (collectively, the “Insurer Defendants”) and a Motion for Partial Summary Judgment (ECF No. 17) filed by pro se Plaintiff Geoffrey William Wattiker. For the following reasons, the District Court should GRANT the Motion to Dismiss and dismiss without prejudice all Wattiker’s claims against the Insurer Defendants. The Court should deny without prejudice Wattiker’s Motion for Partial Summary Judgment.

Background

Wattiker claims that he hired Defendants American Auto Haulers, Inc., (AAH) and Ahmad Noureddine to transport a Porsche 911 from Ontario, California to Forney, Texas. Compl. ¶¶ 14-15 (ECF No. 3). According to Wattiker, Noureddine, on behalf of AAH, picked up the Porsche “in [*2]  good condition” on April 9, 2021. Id. ¶ 16. But Wattiker alleges that, when the Porsche arrived in Texas, it “had suffered severe hail damage.” Id. ¶ 17. Wattiker further claims that he notified Noureddine of the damage upon delivery, and subsequently demanded payment from the Insurer Defendants, who were insuring Noureddine and AAH. Id. ¶¶ 19-21. After the Insurer Defendants made him “one unacceptable offer,” Wattiker filed this lawsuit pro se, asserting claims for strict liability under 49 U.S.C. § 14706 (the “Carmack Amendment“), breach of contract, and negligence. Id. ¶¶ 21, 23-36.

In response, all Defendants filed an Answer (ECF No. 6), and the Insurer Defendants filed a Motion to Dismiss, arguing that, under Texas law, Wattiker cannot assert a third-party claim against them. Wattiker then filed a Response (ECF No. 16), asserting that he can bring a strict liability claim against the Insurer Defendants even as a third party. In his Response, Wattiker also moved for partial summary judgment—asserting that Defendants’ admissions in their Answer demonstrate that he is entitled to prevail on his statutory strict liability claim. Defendants filed a Response (ECF No. 19), arguing that Wattiker’s Motion for Partial Summary [*3]  Judgment is not supported by admissible evidence, that summary judgment is inappropriate before discovery has begun, and because genuine issues of material facts remain related to the strict liability claim. Wattiker then filed a Reply (ECF No. 21). Both Motions are ripe for determination.

Legal Standard and Analysis

The Insurer Defendants assert that Wattiker’s claims against them should be dismissed because all Wattiker’s claims are legally foreclosed. Accordingly, the Court will first consider whether Wattiker has properly stated a claim against the Insurer Defendants. Then, the Court will consider Wattiker’s Motion for Summary Judgment as it applies to any remaining Defendants.

I. Wattiker’s claims against the Insurer Defendants should be dismissed because Wattiker cannot bring any claim directly against an insurer as a third-party claimant.

When deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court “accepts 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 (5th Cir. 2007) (citations and internal quotation marks omitted). However, when deciding a Rule 12(b)(6) motion, a court may not look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To survive a Rule 12(b)(6) motion, therefore, a plaintiff’s [*4]  complaint must contain sufficient factual matter to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “To be plausible, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.'” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555).

This pleading standard does not require “‘detailed factual allegations,'” but it does demand more than an unadorned accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has stopped short of showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly, 550 U.S. at 557).

The Insurer Defendants argue that all Wattiker’s claims against them are legally foreclosed. Specifically, the Insurer Defendants assert that Wattiker has no standing to bring [*5]  a claim against them unless and until he obtains a judgment against the alleged source of his injuries—AAH and Noureddine. Ins. Defs.’ Br. 2 (ECF No. 8). Wattiker admits that the Insurer Defendants are correct with respect to his breach of contract and tort claims, but he claims that he can assert a direct claim for strict liability against them. Pl.’s Resp. 2-3 (ECF No. 16). Wattiker further admits that he cannot maintain even a strict liability claim against the Insurer Defendants until the Court has found the alleged tortfeasors, AAH and Noureddine, liable for Wattiker’s injuries. Id. at 3. However, Wattiker argues that AAH and Noureddine have admitted liability, so the Court should order them liable and simultaneously find the Insurer Defendants liable “in the interest of judicial economy.” Id.

Under Texas law, a “tort claimant may not directly sue a tortfeasor’s liability insurer until the insured tortfeasor is adjudged liable to the claimant.” 15625 Ft. Bend Ltd. v. Sentry Select Ins. Co., 991 F. Supp. 2d 932, 936 (S.D. Tex. 2014) (citation omitted); see also State Farm County Mut. Ins. Co. of Tex. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (“In Texas, an injured party cannot sue the tortfeasor’s insurer directly until the tortfeasor’s liability has been finally determined by agreement or judgment.”). This “no-direct-action rule” applies in both [*6]  contract and tort cases. Turner v. Cincinnati Ins. Co., 9 F.4th 300, 309 (5th Cir. 2021) (citation omitted). Indeed, the “general rule,” is that any “injured party cannot sue the [defendant’s] insurer directly until the [defendant’s] liability has been finally determined by agreement or judgment.” Id. (citing In re Essex Ins. Co., 450 S.W.3d 524, 525 (Tex. 2014)).

Wattiker admits that he cannot maintain his breach of contract and negligence claims against the Insurer Defendants, and the above precedent makes clear that those claims are legally foreclosed. The same can be said for Wattiker’s strict liability claim. Indeed, in the face of the precedent outlined above, Wattiker fails to cite a single legal authority supporting his assertion that he can maintain a suit for strict liability directly against AAH’s and Noureddine’s insurers. Wattiker cannot bring any claim against the Insurer Defendants until he has secured a judgment against AAH and Noureddine. That is, Wattiker may bring claims against the Insurer Defendants if, and only if, he secures a favorable judgment against AAH and Noureddine. Accordingly, at this time, all Wattiker’s claims against the Insurer Defendants are legally foreclosed and should be dismissed without prejudice.

II. Wattiker’s Motion for Partial Summary Judgment should be [*7]  denied because it is premature.

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of showing the absence of a genuine issue for trial. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citation omitted). The movant’s burden can be satisfied by demonstrating that there is an absence of evidence to support the nonmoving party’s case, which the nonmovant bears the burden of proving at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the movant meets its initial burden, the nonmovant must show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992) (citation omitted). 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) (first citing Int’l Shortstop, Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th Cir. 1991); and then citing Fed. R. Civ. P. 56(e)).

The party opposing the summary judgment motion must identify specific evidence in the record and state the precise manner in which that evidence supports the party’s claim. Esquivel v. McCarthy, 2016 WL 6093327, at *2 (N.D. Tex. Oct. 18, 2016) (Lindsay, J.) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1988)). “Rule 56 does not impose a duty on the court to ‘sift through the record in search of evidence’ to support the nonmovant’s opposition to the motion for summary judgment.” Id. (first citing Ragas, 136 F.3d at 458; and then citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)). All evidence must be [*8]  viewed in the light most favorable to the party opposing the summary judgment motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993) (citing Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)). The fact that a litigant is proceeding pro se in a particular case does not alter these principles. See Davis v. Fernandez, 798 F.3d 290, 293 (5th Cir. 2015) (“[T]his is not to say that pro se plaintiffs don’t have to submit competent evidence to avoid summary judgment, because they do.”).

In his Motion, Wattiker contends that Defendants have admitted to strict liability under the Carmack Amendment, and so summary judgment is proper because no issue of fact remains. Pl.’s Mot. 1 (ECF No. 17). As evidence, Wattiker provides Defendants’ Answer, various documents he contends show the details of his agreement with AAH and Noureddine, and photographs he claims illustrate the damage done to the Porsche. See generally Pl.’s App’x. Defendants argue that Wattiker’s Motion is premature. Specifically, they assert that discovery has not yet commenced, and key issues of fact remain. Defs.’ Resp. ¶¶ 20-21, 33-41 (ECF No. 20). Defendants also claim that Wattiker has failed to establish every element of his strict liability claim, and they present a litany of objections to the evidence that Wattiker provides. Id. ¶¶ 9-16, 24-32.

Generally, “[s]ummary judgment assumes some [*9]  discovery.” Brown v. Miss. Valley State Univ., 311 F.3d 328, 333 (5th Cir. 2002); see also, e.g., Alabama Farm Bureau Mut. Cas. Co. v. Am. Fid. Life Ins. Co., 606 F.2d 602, 609 (5th Cir. 1979) (“Summary judgment should not [ ] ordinarily be granted before discovery has been completed.”); Univ. Loft Co. v. Blue Furniture Sols., LLC, 2017 WL 876312, at *3 (W.D. Tex. Mar. 3, 2017) (“Given that no discovery that had taken place at the time this motion was filed, consideration of a motion for summary judgment is premature.”). And because there has been no discovery in this case, summary judgment is indeed premature. Moreover, “[w]hen a party is not given a full and fair opportunity to discover information essential to its opposition to summary judgment, the limitation on discovery is reversible error.” Miller v. Sam Houston State Univ., 986 F.3d 880, 892 (5th Cir. 2021) (citation omitted). Wattiker’s Motion for Partial Summary Judgment is premature, and the Court should deny it as such.

Under this district’s Local Civil Rules, a party may not file more than one motion for summary judgment. N.D. Tex. Local Civ. R. 56.2(b). However, given Wattiker’s pro se status, the Court should deny his pending motion without prejudice and allow him to file a new motion for summary judgment after Defendants have had a chance to undertake meaningful discovery.

RECOMMENDATION

For the reasons stated, the District Court should GRANT the Insurer Defendants’ Motion to Dismiss (ECF No. 7) and DISMISS without prejudice all Wattiker’s claims against Progressive [*10]  Insurance Company, Progressive Commercial Casualty Company, and United Financial Casualty Co. The Court should also DENY without prejudice Wattiker’s Motion for Partial Summary Judgment (ECF No. 17) because it is premature.

SO RECOMMENDED.

August 2, 2022.

/s/ Rebecca Rutherford

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

End of Document