Ascend Performance Materials Operations LLC v. Rescar Companies

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ASCEND PERFORMANCE
MATERIALS OPERATIONS
LLC,
Plaintiff,
versus
RESCAR COMPANIES,
Defendant.
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CIVIL ACTION NUMBER
4:24-cv-00582
JUDGE CHARLES ESKRIDGE
ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
Plaintiff Ascend Performance Materials Operations
LLC, brings claims for breach of contract and negligence.
Dkt 1 (complaint). Defendant Rescar Companies filed a
motion for summary judgment as to both claims. Dkt 84.
The matter was referred for disposition to Magistrate
Judge Christina A. Bryan. Dkt 8. She issued a
Memorandum and Recommendation recommending that
the motion be denied because disputed facts preclude
summary judgment. Dkt 158.
The district court reviews de novo those conclusions of
a magistrate judge to which a party has specifically
objected. See FRCP 72(b)(3) & 28 USC § 636(b)(1)(C); see
also United States v Wilson, 864 F2d 1219, 1221 (5th Cir
1989, per curiam). The district court may accept any other
portions to which there’s no objection if satisfied that no
clear error appears on the face of the record. See Guillory v
PPG Industries Inc, 434 F3d 303, 308 (5th Cir 2005), citing
Douglass v United Services Automobile Association, 79 F3d
United States District Court
Southern District of Texas
ENTERED
May 04, 2026
Nathan Ochsner, Clerk
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1415, 1430 (5th Cir 1996, en banc); see also FRCP 72(b)
advisory committee note (1983).
Defendant filed objections. Dkt 159. It claims that the
Magistrate Judge erred by rejecting arguments that the
“intentional misconduct” of Plaintiff’s employee should
constitute a superseding cause as a matter of law, thereby
cutting off any negligence liability. Id at 2–3. Defendant
further objects to the rejection by the Magistrate Judge of
its foreseeability argument as to the scope of its legal duty
and the availability of breach of contract damages, as well
as its mitigation of damages defense.
Upon de novo review and determination, Defendant’s
objections lack merit. The first objection, concerning
superseding cause, rests upon assertion that Ascend’s
employee, Travis Duncan, engaged in “intentional
falsification of records and dishonesty.” Dkt 159 at 2
(emphasis added). Plaintiff disputes that characterization
and instead asserts that conduct was merely an error. See
Dkt 161 at 2–3. Whether the conduct was intentional or
erroneous—and, in turn, whether it was foreseeable—
presents a question of fact for the jury to decide.
The Magistrate Judge also properly concluded that
Defendant owed a legal duty of reasonable care to Plaintiff
as a result of the “longstanding operational relationship”
between them. Dkt 158 at 7. Whether breach of that duty
proximately caused Plaintiff’s losses cannot be resolved on
summary judgment, as numerous fact issues remain in
dispute. Id at 8–11. The same is true for the mitigation of
damages defense, as the parties dispute when Plaintiff
knew or should have known that the subject tank was
contaminated. Id at 14.
Given the outstanding factual disputes, this case
cannot be resolved on summary judgment.
The objections by Defendant to the Memorandum and
Recommendation of the Magistrate Judge are OVERRULED.
Dkt 159.
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No clear error otherwise appears upon review and
consideration of the Memorandum and Recommendation,
the record, and the applicable law.
The Memorandum and Recommendation of the
Magistrate Judge is ADOPTED as the Memorandum and
Order of this Court. Dkt 158.
The motion by Defendant for summary judgment is
DENIED. Dkt 84.
SO ORDERED.
Signed on _______________, at Houston, Texas.
___________________________
Honorable Charles Eskridge
United States District Judge
May 04, 2026
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