Banquete Independent School District v. The Alliance for Community Solutions, Ltd.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BANQUETE INDEPENDENT SCHOOL
DISTRICT,
Plaintiff,
V.
THE ALLIANCE FOR COMMUNITY
SOLUTIONS, LTD.,
Defendant.
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§ 	CIVIL ACTION NO. 2:22-CV-00094
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Before the Court is Magistrate Judge Jason B. Libby ' s Memorandum and Recommendation
("M&R" ). (D.E. 91). The M&R recommends that the Court grant Plaintiff Banquete Independent
School District's motion for summary judgment, (D.E. 83), and dismiss this case without prejudice
for lack of subject-matter jurisdiction. (D.E. 91 , p. 20). Defendant Alliance for Community
Solutions, Ltd. filed written objections, (D.E. 92), to which Plaintiff filed a response, (D.E. 93).
After review, the Court OVERRULES Defendant' s objections, (D.E. 92), and ADOPTS the
M&R in its entirety, (D.E. 91). Accordingly, the Court GRANTS Plaintiffs motion for summary
judgment, (D. E. 83), and DISMISSES without prejudice the pending case.
I.Law
When a party objects to the findings and recommendations of a magistrate judge, the
district judge "shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(l)(C). As
to any portion for which no objection is filed, a district court reviews for clearly erroneous factual
findings and conclusions oflaw . United States v. Wilson , 864 F.2d 1219, 1221 (5th Cir. 1989) (per
curiam). A party must point out with particularity any alleged errors in the magistrate judge's
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United States District Court
Southern District of Texas
ENTERED
February 06, 2026
Nathan Ochsner, Clerk
Case 2:22-cv-00094 Document 94 Filed 02/06/26 in TXSD Page 1 of 4

analysis. Pelko v. Perales, No. 2:23-CV-00339, 2024 WL 1972896, at *1 (S.D. Tex. May 3, 2024)
(Ramos, J.). "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 bane) (overruled
on other grounds by Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1416 (5th Cir. 1996) (en
bane)) (superseded by statute on other grounds, 28 U.S.C. § 636(b)(l)). When a party raises a new
argument in his objections that was not first presented to the magistrate judge, it is not properly
before the Court. United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).
II. Analysis
Defendant raises several objections to the M&R. (D.E. 92). The Court addresses those
below. 1
At the 	outset, 	Defendant objects 	and 	contends the 	M&R "incorrectly 	claims 	that
[Defendant] abandoned its counterclaims." (D.E. 92, p. 1). Defendant correctly asserts it was
entitled to amend its answer. Id. at 2- 3. Under Federal Rule of Civil Procedure 15(a), an amended
pleading supersedes the pleading it modifies. Fed. R. Civ. P. 15(a). 2 "Similarly, any alleged facts
1 The Court OVERRRULES any objection not explicitly discussed as lacking sufficient particularity.
Pelko, 2024 WL 1972896, at * 1.
2 Defendant contends it has demonstrated it intended to pursue its counterclaims. (D.E. 92, p. 2-3). "Several
courts have determined that litiga nt s do not waive their counterclaims after failing to replead them when
the litigant has demonstrated [their] 	intent to continue to pursue the counterclaims." Progressive
Laboratories, Inc. v. Living Fuel, Inc., No. 3:23-CV-2052-B, 2024 WL 4183525 , at* 1 (N.D. Tex. Aug. 27,
2024) (Boyle, J.) (citation modified). "Thus, to avoid waiving their counterclaims when the plaintiff files
an amended complaint, parties must either rep lead their counterclaims or otherwise demonstrate their intent
to continue pursuing them." Id. ( citing Schutt a/n/ffor A.S. v. Garland Indep. Sch. Dist., 3: 17-CV-1708-B,
2019 WL 3006768, at *3 (N.D. Tex. July 9, 2019) (Boyle, J.)). The Court does not find this ana ly sis
persuasive. Although waiver of counterclaims is not explicitly addressed in the Federal Rules of Civil
Procedure, " [c]ounterclaims ... are subject to the same pleading requirements as complaints." Deniece
Design, LLC v. Braun, 953 F. Supp. 2d 765 , 776 (S.D. Tex. 2013) (Harmon J.); see also Wood.field v.
Bowman, 193 F.3d 354,362 (5th Cir. 1999) (applying Rule 8' s pleading requirements to counterclaims). A
plaintiff's amended complaint entirely supersedes their prior complaint without consideration of the
plaintiff's intent to waive omitted claims. See Bosarge v. Miss. Bureau ofNarcotics, 796 F.3d 435,440 (5th
Cir. 2015). Because Defendant's counterclaims are subject to the same requirements as pleadings under the
Federal Rules of Civil Procedure, the Court declines to consider Defendant's intent in its analysis.
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made in the original (pleading] and not incorporated in the amended (pleading] have been
' amended away. "' Landmark Graphics Corp. v. Paradigm Geophysical Corp. , No. Civ.A. H-05-
2618, No. Civ.A. H-06-1790, 2007 WL 189333, at *1 (S.D. Tex. Jan. 22, 2007) (Rosenthal, J.)
(quoting Hibernia Nat 'l Bank v. Carner, 997 F.2d 94 , 101 (5th Cir. 1993)).
Applying that rule here, Defendant "amended away" its counterclaims. The 	Court
considers Defendant's Third Amended Answer and Affirmative Defenses as its operative pleading.
(D.E. 45) (filed November 30 , 2023). This answer superseded both Defendant's First Amended
Answer and Counterclaim, (D.E. 3) (filed May 16 , 2022), and Defendant's Second Amended
Answer, Affirmative 	Defenses, and 	Counterclaim, (D.E. 	15) 	(filed November 	23 , 2022).
Defendant's Third Amended Answer and Affirmative Defenses did not contain its counterclaims.
(D.E. 45). Nor did it incorporate Defendant's counterclaims by reference. Id.
Accordingly, the Court finds that because Defendant's operative pleading failed to include
its counterclaims, those claims are waived. Landmark Graphics Corp. , 2007 WL 189333, at * 1.
The Court OVERRULES Defendant's objection. (D .E. 92 , p. 2- 5). After conducting a de novo
review of the issues raised by Defendant's other objections, the Court finds no error with the
Magistrate Judge's findings and conclusions and OVERRULES the remaining objections. (D.E.
92).
III. Conclusion
Having reviewed the proposed findings and conclusions of the M&R, the record, the
applicable law, and having made a de novo review of the portions of the M&R to which
Defendant' s objections 	are 	directed, 28 	U.S.C. 	§ 636(b)(l)(C), the 	Court OVERRULES
Defendant' s objections, (D .E. 92), and ADOPTS the M&R in its entirety, (D.E. 91). The Court
GRANTS Plaintiffs motion for summary judgment, (D. E. 83), DENIES as moot any remaining
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pending motions, and DISMISSES without prejudice the pending case.
The Court will enter a final judgment separately.
SO ORDERED.
Signed: Corpus Christi, Texas
February (0~ 2026
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DAV 	ORALES
UNITED STATES DISTRICT JUDGE
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