Ely v. The L Makeup Agency and Institute, LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ELY, JESSICA, 	§
Plaintiff, 	§
§
V. 	§ 	CIVIL ACTION NO. 4:25-CV-1467-P
§
THE L MAKEUP AGENCY 	§
& INSTITUTE, LLC, ET AL., 	§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED
STATES MAGISTRATE JUDGE REGARDING PLAINTIFF’S MOTION TO STRIKE
Pending before the Court is pro se Plaintiff Jessica R Ely’s Motion to Strike Defendant's
Affirmative Defenses (“Motion to Strike”) [doc. 18], filed December 12, 2025. Plaintiff Jessica
Ely (“Plaintiff”) “moves under Fed. R. Civ. P. 12(f) to strike all defenses as they are legally
insufficient and fail to provide fair notice and/or the established higher ‘Plausibility’ standard for
pleading in federal civil court.” (Plaintiff’s Motion to Strike Defendant's Affirmative Defenses at
1.) The two affirmative defenses in question are as follows:
8. Further answering the Complaint, Plaintiff’s claim of negligent infliction of
emotional distress, Section VII. of Plaintiff’s Complaint, is barred because Texas
law does not recognize the tort of negligent infliction of emotional distress. Harris
v. Ethicon, Inc., No. 1:20-CV-80-RP, 2020 WL 3579829, at *2 (W.D. Tex. Mar. 6,
2020).
9. Defendants further plead that Plaintiff’s claims are barred by collateral estoppel.
Plaintiff’s claims have been fully adjudicated by a court of competent jurisdiction
in Tarrant County, Texas and Plaintiff’s efforts to collaterally attack the judgment
issued by that court is improper before this Court. To the extent that Plaintiff takes
issue with the judgment against her, her obligation is to contest those claims before
the appropriate court by filing or pleading the appropriate claims. This Court is not
the proper tribunal in which to contest the judgment.
(Defendants’ The L Makeup Agency & Institute, LLC, L Makeup Institute, Lissette Waugh, and
Kyle Waugh Original Answer at 10.) 	The above defenses are not insufficient, redundant,
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immaterial, impertinent, or scandalous. 	Fed. R. Civ. P. 12(f) (“The court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.”). As such, the relief requested by Plaintiff is not proper. Consequently, the Court FINDS
and CONCLUDES that Plaintiff’s motion should be DENIED.
Based on the foregoing, the Court RECOMMENDS that Plaintiff’s Motion to Strike [doc.
18] be DENIED.
NOTICE OF RIGHT TO OBJECT TO PROPOSED
FINDINGS, CONCLUSIONS AND RECOMMENDATION
AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific
written objections in the United States District Court to the United States Magistrate Judge’s
proposed findings, conclusions and recommendation within fourteen (14) days after the party has
been served with a copy of this document. The United States District Judge need only make a de
novo determination of those portions of the United States Magistrate Judge’s proposed findings,
conclusions and recommendation to which specific objection is timely made. 	See 28 U.S.C. §
636(b)(1). 	Failure to file, by the date stated above, a specific written objection to a proposed
factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest
injustice, from attacking on appeal any such proposed factual findings and legal conclusions
accepted by the United States District Judge. See Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415, 1428–29 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending time to file objections to 14 days).
ORDER
Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until March 6,
2026, to serve and file written objections to the United States Magistrate Judge’s proposed
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findings, conclusions and recommendation. It is further ORDERED that if objections are filed
and the opposing party chooses to file a response, the response shall be filed within seven (7) days
of the filing date of the objections.
SIGNED February 20, 2026.
__________________________
JEFFREY L. CURETON
UNITED STATES MAGISTRATE JUDGE
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