Opinion
22-CV-00076-DC-RCG
07-06-2023
JERMAINE EUGENE, Plaintiff, v. AFD PETROLEUM LTD, et al., Defendants.
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Defendant Alaska Fuel Distributors Inc.'s (“Defendant Alaska”) Motion to Dismiss. (Doc. 21). This case is before the undersigned through an Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS that Defendant's Motion to Dismiss be DENIED IN PART and GRANTED IN PART. (Doc. 21).
I. Background
On April 1, 2022, Plaintiff Jermaine Eugene (“Plaintiff”) filed his Original Complaint. (Doc. 1). After Defendant AFD Petroleum Ltd. filed its first Motion to Dismiss on June 10, 2022 (Doc. 3), Plaintiff filed his First Amended Complaint (“FAC”) (Doc. 8), alleging that Defendants AFD Petroleum Ltd., AFD Petroleum (Texas) Inc., Alaska, and AFD Holdings, Inc. (collectively, “Defendants”) violated the Civil Rights Act of 1866, 42 U.S.C. § 1981, et seq. Id. Plaintiff alleges: 1) employment discrimination on the basis of race; 2) hostile work environment; and 3) retaliation. Id. at 7-8. Plaintiff seeks to recover back and front pay, compensatory damages, punitive damages, pre- and post-judgment interest, and attorneys' fees and costs. Id. at 9. Additionally, Plaintiff requests that “Defendants be ordered to require training regarding discrimination based upon race and discrimination based on retaliation.” Id.
Plaintiff alleges that Defendants, functioning as an integrated enterprise and joint employers, offer “a variety of supplies and support to various industries including, but not limited to, independently sourced bulk fuel, heavy-duty lubricants, grease, and fluids; efficient, state-of-the[-]art delivery systems; on-site fuel and oil tank storage systems; accurate online satellite tank level monitoring; real-time billing and reporting; technical support; and project management.” (Doc. 8 at 3). Plaintiff worked at the Midland, Texas facility from approximately June 2017 until April 2018. Id. at 3, 8. He would “either be assigned work shifts at Defendants' Midland Facility or be assigned to work shifts at customer job sites throughout the states of Texas and Oklahoma.” Id. at 3.
Plaintiff avers that, throughout his employment, he experienced “an environment of pervasive discrimination.” Id. According to the FAC, Plaintiff's “non-Black co-workers and managers frequently use[d] racial slurs and derogatory language,” creating a hostile work environment. Id. at 3-4. Further, Plaintiff asserts that all management personnel at the Midland facility were non-Black and that they “assigned significantly more dangerous or difficult labor assignments to Black employees compared to Hispanic employees.” (Doc. 8 at 5). Finally, Plaintiff contends that, in or around March 2018, he reported such behavior to the Human Resources Department. Id. at 6. Then, in or around April 2018, Plaintiff claims that “his work shift assignments [were] dramatically reduced” and that it eventually “became impossible for Plaintiff to earn a living wage because Defendants' non-Black management at the Midland Facility refused to assign more work for Plaintiff,” resulting in his constructive discharge. Id. at 6-7.
On October 20, 2022, Defendant Alaska filed its Motion to Dismiss. (Doc. 21). Plaintiff then filed his Response on November 29, 2022. (Doc. 28). Additionally, on November 30, 2022, Plaintiff filed his Appendix in Support of Plaintiff's Response. (Doc. 30). On December 6, 2022, Defendant Alaska filed its Reply. (Doc. 31). Consequently, this matter is ripe for disposition.
II. Legal Standard
A. Motion to Dismiss for Lack of Personal Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(2), a court must dismiss a claim if it finds a lack of personal jurisdiction. Once a defendant has asserted such an argument, “the burden shifts to the plaintiff to establish that in personam jurisdiction exists.” Palmer v. Idalia Llorens Collection Agency, Inc., 434 F.Supp.3d 462, 466-67 (E.D. Tex. 2020) (citing Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990)). “When a court rules on the issue without a full evidentiary hearing, a plaintiff need only make a prima facie showing of jurisdiction.” Harding v. Alaska Fuel Distribs., Inc., No. MO:17-CV-00008-RAJ, 2017 WL 7921202, at *1 (W.D. Tex. June 29, 2017) (citing Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994)). Additionally, “allegations in the plaintiff's complaint are taken as true, except to the extent that they are contradicted by the defendant” and “[a]ny material and genuine, conflicting facts are resolved in favor of the plaintiff for the purpose of determining whether a prima facie case exists.” Palmer, 434 F.Supp.3d at 467 (citing Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000)).
There are two requirements for a court to exercise personal jurisdiction over a nonresident defendant: “(1) the long-arm statute of the forum state creates personal jurisdiction over the defendant; and (2) the exercise of personal jurisdiction is consistent with the due process guarantees of the United States Constitution.” Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002).
Relevant here is Texas's long-arm statute, which “is coextensive with the federal constitutional limits of due process and normally generates an inquiry limited to the scope of the Fourteenth Amendment's Due Process Clause.” Palmer, 434 F.Supp.3d at 467 (citing Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 482 (5th Cir. 2008); Religious Tech. Ctr. v. Liebreich, 339 F.3d 369, 373 (5th Cir. 2003)). Thus, the primary inquiry is whether exercising personal jurisdiction over Defendant Alaska is consistent with the Due Process Clause.
“The Texas long-arm statue states: In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident: (1) Contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part of this state; [or] (2) Commits a tort in whole or in part in this state.” Palmer, 434 F.Supp.3d at 467.
In general, the Due Process Clause requires that the defendant have “meaningful ‘contacts, ties, or relations' with the forum state” before a court may exercise personal jurisdiction over a nonresident defendant. Palmer, 434 F.Supp.3d at 468 (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 319 (1945)). Further, personal jurisdiction may be general, where the defendant has “continuous and systematic general business contacts” with the forum, or specific, where a suit “aris[es] out of or relate[s] to the defendant's contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984). For a court to possess specific jurisdiction, a defendant must “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
The Fifth Circuit determines specific personal jurisdiction using a three-step analysis:
(1) Whether the defendant . . . purposefully directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there; (2) Whether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) Whether the exercise of personal jurisdiction is fair and reasonable.Palmer, 434 F.Supp.3d at 468 (citing Stroman Realty, 513 F.3d at 484). Furthermore, the nonresident party must have “reasonably anticipat[ed] being haled into court.” World-Wide Volkswagen Corp. v. Woodson (Volkswagen I), 444 U.S. 286, 297 (1980).
B. Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, a court must “accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). Federal Rule of Civil Procedure 8 requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Thus, to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 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 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Twombly, 550 U.S. at 555-56. However, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556-57. Additionally, the Court is not bound to accept as true a legal conclusion couched as a factual allegation in the complaint. See Iqbal, 556 U.S. at 678. Thus, although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead “specific facts, not mere conclusory allegations.” Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
III. Discussion
Defendant Alaska argues that, because it is an Alaskan corporation with its principal place of business in Fairbanks, Alaska, it is not subject to this Court's general jurisdiction. (Doc. 21). Additionally, Defendant Alaska avers that it is not subject to the Court's specific jurisdiction because it “had no material purposeful contacts with Texas during the time that Plaintiff was employed by AFD Texas.” Id. at 10. Further, Defendant Alaska asserts that it was not Plaintiff's employer-Defendant AFD Petroleum (Texas) Inc. (hereinafter, “AFD Texas”) was-and that AFD Texas's presence in Texas is not attributable to Defendant Alaska. Id. at 12. Finally, Defendant Alaska argues Plaintiff failed to plead facts sufficient to show it was his employer. Id. at 14. In response, Plaintiff argues that he established a prima facie case of specific jurisdiction as to Defendant Alaska because Defendants, together, form an integrated enterprise. (Doc. 28). Moreover, Plaintiff maintains he sufficiently pleaded joint employer status as to all Defendants under both the integrated enterprise and economic realities tests. Id. at 11-14.
Because Plaintiff does not dispute Defendant Alaska's assertion that this Court does not possess general jurisdiction, the Court will treat the argument as waived and proceed with the specific jurisdiction analysis.
“Specific jurisdiction is appropriate only where the defendant ‘purposefully availed itself of the privilege of conducting activities in-state, thereby invoking the benefits and protections of the forum state's laws,' though it ‘may arise incident to the commission of a single act directed at the forum.'” Fed. Trade Comm. v. Educare Centre Servs., Inc., 414 F.Supp.3d 960, 968 (W.D. Tex. 2019) (quoting Herman v. Cataphora, Inc., 730 F.3d 460, 464 (5th Cir. 2013)). The first step in determining whether specific jurisdiction exists requires the court to inquire “[w]hether the defendant . . . purposefully directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there.” Palmer, 434 F.Supp.3d at 468. “Even a single contact can support specific jurisdiction if it creates a ‘substantial connection' with the forum.” Clay v. Palfinger USA, LLC, A-20-CV-724-LY, 2021 WL 430685, at *5 (W.D. Tex. Feb. 8, 2021), report and recommendation adopted, 2021 WL 8053491 (W.D. Tex. Feb. 26, 2021) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 n.18 (1985)). The second step requires the court to ask “[w]hether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts.” Palmer, 434 F.Supp.3d at 468. Finally, the court must determine “[w]hether the exercise of personal jurisdiction is fair and reasonable.” Id.
To reiterate, Defendant Alaska argues it is not subject to specific jurisdiction because it had no purposeful contacts with Texas, in addition to asserting that Plaintiff failed to even allege Defendant Alaska had any purposeful contacts with Texas. (Doc. 21 at 10). Defendant Alaska also argues that it is not an integrated enterprise or joint employer, as it is a distinct corporate entity. Id. at 12. To support its arguments, Defendant Alaska attached the affidavit of Micky Bertz, its Area Manager. (See Doc. 21-1). Mr. Bertz states that Defendant Alaska was not involved in AFD Texas's day-to-day management; Defendant Alaska did not do business in Texas, have operations or facilities in Texas, or own, use or possess property in Texas; Defendant Alaska does not make, use, sell, offer for sale, or import any products into Texas; and Defendant Alaska does not own stock in AFD Texas. (Doc. 21-1).
Plaintiff responds that the exhibits found in his Appendix to his Response show: Defendant Alaska “regularly interacted with [AFD Texas] regarding confidentiality agreements, vehicle policies, and electronics policies”; AFD Texas's human resources department “collaborated with Alaska Fuel's accounting department regarding the withholding of orders” and “also acted on behalf of Alaska Fuel in order to resolve payroll issues and missing paper checks”; and that Defendant Alaska “was the legal assignor for Defendant [AFD Texas] for a lease of equipment used for trucking and business operations.” (Doc. 28 at 12-13) (citing Doc. 30 at 5-6, 9-11). According to Plaintiff, this evidence shows Defendant Alaska “purposely directed its actions towards Texas with respect to operations at the facility in Midland, Texas that employed Plaintiff.” (Doc. 28 at 13).
“The court may consider the contents of the record, including affidavits or other recognized methods of discovery, in deciding whether to exercise specific jurisdiction.” ATX Innovation, Inc. v. Velocity Mobile Ltd, 1-15-CV-895 RP, 2016 WL 918052, at *2 (W.D. Tex. Mar. 8, 2016) (citing Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985)).
Plaintiff also argues Defendant Alaska “played an active role in the day-to-day operations at the . . . facility in Midland, Texas,” thus showing that Plaintiff's claims arose out of Defendant Alaska's purposeful contacts with Texas. Id. at 14. To support this claim, Plaintiff references exhibits allegedly showing Defendant Alaska “possessed the information regarding Plaintiff's emergency contacts during his employment” and “maintained the payroll records for Plaintiff, and organized his income withholding and personal ‘medical orders.'” Id. (citing Doc. 30 at 1213). Finally, Plaintiff points to Defendant Alaska's failure to address the third step of the specific jurisdiction analysis regarding whether the exercise of personal jurisdiction is fair and reasonable. Id. at 15.
The undersigned finds Plaintiff has provided prima facie evidence that Defendant Alaska is subject to this Court's specific jurisdiction. In his Complaint, Plaintiff alleges Defendants employed individuals in Midland, Texas, and provided “fuel, lubricants, & bulk tanks products throughout Texas.” (Doc. 8 at 2). He also alleges that he was hired by Defendants, who acted as his joint employer. Id. at 3. Although Defendant Alaska disputes these assertions by providing Mr. Bertz's affidavit, Plaintiff provided evidence in response stating that Defendant Alaska and AFD Texas interacted regularly, acting on behalf of one another regarding withholding orders and payroll issues. (Doc. 30 at 9-11). Most significantly, the evidence suggests that Defendant Alaska may have maintained Plaintiff's payroll records. Id. at 13. Thus, Plaintiff's allegations, when viewed in a light most favorable to Plaintiff show Defendant Alaska purposefully directed its activities toward Texas.
Plaintiff has alleged that Defendant AFD's human resources department regularly collaborated with Defendant Alaska and that Defendant Alaska maintained some of Plaintiff's employment-related records. It stands to reason that Plaintiff's claims are related to Defendant Alaska's contacts with Texas given that the evidence suggests there may have been significant overlap between Defendant Alaska and AFD Texas's human resources departments. Specifically, Plaintiff alleges Defendants retaliated against him as a response to his complaints made to Defendants' human resources department and, consequently, he was subjected to reduced work hours, which resulted in reduced pay. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1026 (2021) (quoting Bristol-Myers Squibb Co. v. Super. Ct. of Calif., 582 U.S., at ----, 137 S.Ct. 1773, 1780 (2017) (internal citation omitted)) (The Supreme Court stating that “[n]one of our precedents has suggested that only a strict causal relationship between the defendant's in-state activity and the litigation will do. As just noted, our most common formulation of the rule demands that the suit ‘arise out of or relate to the defendant's contacts with the forum.'”).
Lastly, the Court finds the exercise of personal jurisdiction over Defendant Alaska to be fair and reasonable. Although Defendant Alaska bears the burden of proof, determining fairness and reasonableness requires the Court to consider five factors: “(1) the burden on the nonresident defendant, (2) the forum state's interest, (3) the plaintiff's interest in securing relief, (4) the interest of the interstate judicial system in the efficient administration of justice, and (5) the shared interest of the several states in further fundamental social policies.” McFadin v. Gerber, 587 F.3d 753, 760 (5th Cir. 2009) (quoting Luv N' care Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 473 (5th Cir. 2006)). As noted above, Defendant Alaska has not argued that defending itself against suit in Texas would be burdensome. Regardless, Texas has an interest in protecting its residents' rights and providing them a convenient forum to resolve disputes. Further, traveling to Texas, although inconvenient, is not so burdensome as to outweigh the other interests in this case.
* * *
The undersigned finds Plaintiff made a prima facie case as to specific personal jurisdiction. Therefore, the undersigned RECOMMENDS Defendant Alaska's Motion to Dismiss be DENIED based on lack of personal jurisdiction grounds. (Doc. 21).
The Court addresses Defendant Alaska's arguments pursuant to Rule 12(b)(6). As such, the undersigned's analysis is restricted to Plaintiff's First Amended Complaint and does not consider any evidence attached to the Motion to Dismiss or Plaintiff's Response, as that evidence is only relevant to the issue of personal jurisdiction. Furthermore, the parties' references to the attached evidence are limited to arguments regarding personal jurisdiction.
Next, Defendant Alaska argues that Plaintiff failed to plead facts sufficient to demonstrate that each Defendant, individually, was his employer, “instead making sweeping, conclusory allegations that Defendants operated as a joint employer.” (Doc. 21 at 15). In response, Plaintiff maintains that he pleaded that Defendants qualified as a joint employer, thus satisfying both the integrated enterprise and economic realities tests. (Doc. 28 at 17-21). Plaintiff also requests, should the undersigned find it appropriate to grant Defendant Alaska's Motion to Dismiss pursuant to Rule 12(b)(6), that he be given leave to amend. Id. at 21.
The economic realities test is typically employed “for determining employment status under the Fair Labor Standards Act,” not claims arising from § 1981. Johnson v. Houston KP, LLC, 588 F.Supp.3d 738, 743 (S.D. Tex. 2022); see Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012) (using the economic realities test to determine whether an employee/employer relationship existed).
“Section 1981 prohibits discrimination on the grounds of race in the making and enforcing of contracts.” Perry v. Pediatric Inpatient Critical Care Servs., P.A., Civil Action No. SA-18-CV-404-XR, 2020 WL 1248263, at *21 (W.D. Tex. Mar. 16, 2020) (citing 42 U.S.C. § 1981(a)). This language includes “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship,” which encompasses employment contracts. Id. (citing 42 U.S.C. § 1981(b)). When evaluating whether there was joint employment or an integrated enterprise under § 1981, the Fifth Circuit uses “the Title VII Trevino four-factor test for § 1981 claims.” Jones v. Tubal-Cain Hydraulic Sols., Inc., No. 4:16-CV-01282, 2017 WL 1177995, at *5 (W.D. Tex. Mar. 30, 2017) (referencing Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983)); see Johnson v. Crown Enters., Inc., 398 F.3d 339, 343 (5th Cir. 2005). The four factors include: 1) “interrelation of operations”; 2) “centralized control of labor relations”; 3) “common management”; and 4) “common ownership or financial control.” Id. (citing Chaiffetz v. Robertson Rsch. Holding, Ltd., 798 F.2d 731, 735 (5th Cir. 1986)). The second factor is the most important and “has [been] narrowed to an inquiry of ‘what entity made the final decisions regarding employment matters related to the person claiming discrimination.'” Id.
Plaintiff alleges in his First Amended Complaint that: 1) Defendants operated as an integrated enterprise and as joint employers; 2) Defendants hired and employed Plaintiff; 3) the management at Defendants' Midland Facility “had the ability to control the assignments for each employee”; and 4) “Defendants jointly operate a single Human Resources department.” (Doc. 8 at 2-6). These statements are conclusory and do not constitute factual allegations. Stuntz v. Lion Elastomers, L.L.C., 2017 WL 11613239, at *6 (E.D. Tex. Sept. 12, 2017) (quoting ABC Arbitrage Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 348 (5th Cir. 2002)) (“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent dismissal ....”). While the general allegation that Defendants operated a joint Human Resources department may suggest centralized control of labor relations, there are no specific allegations as to such things as Defendants' making collective decisions regarding employees, maintaining certain joint policies and procedures or records of employees, or possessing common ownership or financial control. See Stuntz, 2017 WL 11613239; Lucas v. BMS Enters., Inc., Civil Action No. 3:09-CV-2159-D, 2010 WL 1371977 (N.D. Tex. Apr. 5, 2010); see also Bass v. UPS Capital Corp., Civil Action No. 08-1288, 2008 WL 4758612, at *4 (E.D. La. Oct. 27, 2008). Although the allegations must be viewed in the light most favorable to the plaintiff, the undersigned is not required to accept mere conclusory allegations such as the ones present here. Tuchman, 14 F.3d at 1067.
* * *
Thus, the undersigned finds Plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,” viewed in the light most favorable to Plaintiff. Twombly, 550 U.S. at 570. Therefore, because the undersigned has concluded that Plaintiff has not sufficiently pleaded facts showing Defendant Alaska is a joint employer, the undersigned RECOMMENDS Defendant Alaska's Motion to Dismiss be GRANTED. (Doc. 21).
C. Plaintiff's Request to Amend Complaint
Federal Rule of Civil Procedure 15(a)(2) provides “[t]he court should freely give leave when justice so requires.” Although “leave to amend is by no means automatic,” a court should “possess a ‘substantial reason' to deny leave to file an amended complaint.” Lawton v. Osado Water Transfer Co., LLC, No. MO:15-CV-00189-RAJ-DC, 2016 WL 11586133, at *1 (W.D. Tex. Sept. 15, 2016) (citations omitted). Plaintiff filed his First Amended Complaint prior to Defendant Alaska's filing of its Motion to Dismiss. (See Docs. 8, 21). Here, the Court finds leave to amend proper.
IV. Recommendation
Based on the circumstances present in this case, the Court RECOMMENDS Defendant Alaska's Motion to Dismiss be DENIED IN PART and GRANTED IN PART. (Doc. 21). Further, the undersigned RECOMMENDS that Plaintiff's claims be DISMISSED WITHOUT PREJUDICE and that he be granted leave to amend his complaint.
Instructions for Service and Notice of Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).