Opinion
CIVIL ACTION NO. 14-3464
08-31-2015
MARCIA OLSON, ET AL. v. BIOSONIX, LLC
MAGISTRATE JUDGE KIRK
ORDER
Before the court is the Report and Recommendation of the Magistrate Judge [R. 12] recommending that the Motion to Dismiss [R. 7] be granted and, accordingly, that all claims by Plaintiffs in the above-captioned suit be dismissed with prejudice. The court has carefully reviewed the entire record, including the objections filed in response to the Report and Recommendation and finds that Defendant's motion should not be granted. Specifically, the court finds that, although the Rooker-Feldman doctrine would bar Plaintiffs from asserting a collateral attack on the prior judgment of a court in which the issue of whether or not that court possessed personal jurisdiction over Plaintiffs had been "fully and fairly litigated[,]" this case does not present such facts. Rather, the facts show that Plaintiffs made no appearance in the prior Texas state court proceeding and, therefore, the issue of that court's personal jurisdiction over them was not litigated.
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982) citing Baldwin v. Traveling Men's Assn., 283 U.S. 522 (1931).
Final Default Judgment issued 5/27/2013 by 95th Judicial District Court [R. 1-2] at pp. 1-2, verifying that Marcia Olson filed no answer, nor made any appearance in that proceeding.
It is well established that a party is free to ignore proceedings at the risk of default judgment and to challenge any such judgment collaterally. Plaintiffs' instant suit alleges that the default judgment, entered by the 95th Judicial District Court for Dallas County, State of Texas, violated her due process rights. Thus, Plaintiff's suit presents federal question jurisdiction on its face.
Id.; Cooper v. Newell, 173 U.S. 555, 568-69 (1899).
R. 1, generally.
28 U.S.C. § 1331; Jacuzzi v. Pimienta, 762 F.3d 419, 421 (5th Cir. 2014) citing Broad Music, Inc. v. M. T. S. Enters., Inc., 811 F.2d 278, 281 (5th Cir. 1987). --------
Based upon these findings, we decline to adopt the Report and Recommendation of the Magistrate Judge, previously entered herein and it is, further
ORDERED that the Motion to Dismiss filed by the Defendant in this matter is DENIED in all respects and all claims by Plaintiff are preserved for further proceedings.
THUS DONE AND SIGNED this 31st day of August, 2015.
/s/ _________
DEE D. DRELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT