Fornesa v. Auto Club Indeminity Company et al Plaintiff is not to file any motions until after motion to dismiss is ruled on.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Ricardo Fornesa,
Plaintiff,
v.
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Civil No. 4:26-cv-974
Auto Club Indeminity Company, et al.,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Ricardo Fornesa, proceeding pro se, sued Defendants for violations of his
constitutional rights under 42 U.S.C. § 1983, negligent misrepresentation, and violations
of the Texas Insurance Code and Texas Deceptive Trade Practice Act. Doc. 14 at 1–2; see
also Doc. 48 at 4. Thereafter, Defendant Auto Club Indemnity Company filed a Motion to
Dismiss. Doc. 26. The case was then referred to United States Magistrate Judge Dena
Hanovice Palermo. Doc. 30. Magistrate Judge Palermo issued a report recommending that
Auto Club’s Motion be granted and that Plaintiff’s claims with respect to the other
Defendants be dismissed under Rule 4(m). Doc. 48. Plaintiff objected to the report. Doc.
49.
The court reviews the objected-to portions of a Magistrate Judge’s report and
recommendation de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). However, the
“objections must specifically identify those findings objected to. Frivolous, conclusive, or
general objections need not be considered by the district court.” Nettles v. Wainwright, 677
F.2d 404, 410 n.8 (5th Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass
United States District Court
Southern District of Texas
ENTERED
October 15, 2026
Nathan Ochsner, Clerk
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v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). When there have been
no timely objections to a report, or the objections are improper, “the court need only satisfy
itself that there is no clear error on the face of the record.” Fed. R. Civ. P. 72(b), advisory
committee’s notes to 1983 amendment.
Here, Magistrate Judge Palermo recommends dismissal of Plaintiff’s claims with
respect to Defendant Auto Club, Hill, and Dilday for lack of subject-matter jurisdiction.
Doc. 48 at 5–7. Specifically, Magistrate Judge Palermo recommends that because this case
stems from an underlying state-court judgment, Plaintiffs claims are barred under the
Rooker-Feldman doctrine. Id. Magistrate Judge Palermo also concluded that Plaintiff failed
to plausibly allege a Section 1983 claim. With respect to Defendants Hill, Dilday, and the
remaining Defendants, Magistrate Judge Palermo further recommends dismissal under
Rule 4(m) for Plaintiffs’ failure to effectuate proper service. Id. at. 10–12.
The Court agrees with Magistrate Judge Palermo’s analysis that Plaintiff cannot
state a claim under Section 1983 because none of the Defendants are state actors. See Doc.
48 at 7–9. Neither the Complaint nor Plaintiff’s objections, Doc. 49, allege facts showing
otherwise. Nor do the objections even address Magistrate Judge Palermo’s analysis under
Rule 4(m). See generally id. As such, the Court agrees that dismissal with prejudice as to
Defendant Auto Club is appropriate, and that dismissal without prejudice as to the
remaining Defendants is appropriate under Rule 4(m).
Having reviewed Magistrate Judge Palermo’s report and being satisfied that there is
no error, the Court adopts the report’s findings and recommendations. Defendant Auto
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Club’s Motion to Dismiss, Doc. 26, is GRANTED. Plaintiff’s claims against Defendant
Auto Club are DISMISSED WITH PREJUDICE. As to the remaining Defendants,
Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE under Rule 4(m).
A final judgment will be entered separately.
SO ORDERED.
SIGNED at Houston, Texas, on the 15th of October, 2026.
__________________________
Nicholas J. Ganjei
United States District Judge
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