IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION FULCRUM CONSTRUCTION, INC., § § Plaintiff, § § VS. § CIVIL ACTION NO. SA-24-CV-00951-FB § 3500 GOLIAD ROAD, LP and GOLIAD, INC., § § Defendants, § § UNITED STATES OF AMERICA, § Intervenor and Third Party-in-Interest. § ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER GRANTING MOTION TO DISMISS COUNTERCLAIMS Before the Court are: (1) the Report and Recommendation of United States Magistrate Judge filed on April 25, 2025 (docket #30); (2) Plaintiff’s Objections and Brief in Opposition to the Magistrate’s Report and Recommendation to Grant Summary Judgment as to the Plaintiff’s Affirmative Claim filed on May 7, 2025 (docket #31); and (3) Defendants' Response to Plaintiff's Objections and Brief in Opposition to the Magistrate's Report and Recommendations to Grant Summary Judgment as to the Plaintiff's Affirmative Claim filed on May 9, 2025 (docket #32). Also pending before the Court are: (1) Defendants' Motion to Dismiss Its Counterclaims Pursuant to Federal Rules of Civil Procedure 41(a)(2) filed on August 4, 2025 (docket #33); (2) Plaintiff’s Notice of Non-Opposition to Defendants’ Motion to Dismiss Its Counterclaims filed on August 5, 2025 (docket #34); (3) Motion to Show Cause Why Defendants Should Not Be Held in Contempt of Court filed on August 26, 2025 (docket #35); and (4) Response to Plaintiff's Motion to Show Cause as to Why Defendants Should Not Be Held in Contempt of Court filed on August 29, 2025 (docket #36). Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review of them. See

(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and

recommendations to which objection is made."). In such cases, the Court need only review the Report and Recommendation and determine whether they are either clearly erroneous or contrary to law. United States v. Wilson,

(5th Cir.), cert. denied,

(1989). On the other hand, any Report or Recommendation to which there are objections requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Commission,

(5th Cir. 1987). In the Report, United States Magistrate Judge Chestney, after considering the summary

judgment motion filed by the Defendants, the response and reply thereto, the summary judgment record, and the governing law, recommends to this Court that Defendant’s Second Amended Motion for Summary Judgment be granted as to all of Plaintiff Fulcrum Construction, Inc.’s claims. The Court has reviewed the Plaintiff’s objections as well as Defendants’ response thereto and has conducted a de novo review of those issues properly raised by the Plaintiff in its objections. The Court finds, after careful consideration of the record and the Report and Recommendation, that the Plaintiff’s objections lack merit and are overruled. Therefore, the Court hereby accepts, approves, and adopts the Magistrate Judge's factual findings and legal conclusions contained in the Report and

Recommendation (docket #30), incorporates herein the arguments in support presented in Defendants'

-2- Response to Plaintiff's Objections and Brief in Opposition to the Magistrate's Report and Recommendations to Grant Summary Judgment as to the Plaintiff's Affirmative Claim (docket #32), and finds the recommendation should be accepted such that Defendant’s Second Amended Motion for Summary Judgment (docket #10) shall be GRANTED such that all of the Plaintiff’s claims and this case shall be DISMISSED WITH PREJUDICE.

Accordingly, it is hereby ORDERED that the Report and Recommendation of the United States Magistrate Judge filed in this cause on April 25, 2025 (docket #30), is ACCEPTED pursuant to

(b)(1) such that Defendant’s Second Amended Motion for Summary Judgment (docket #10) is GRANTED and all of the Plaintiff’s claims are DISMISSED WITH PREJUDICE. At the time the Report and Recommendation was filed, Magistrate Judge Chestney noted in her Report that if this Court accepts and adopts her Recommendation, the only remaining causes of action in this suit are the counterclaims asserted by Defendants 3500 Goliad Road, LP, and Goliad, Inc. against Plaintiff Fulcrum Construction, Inc., prior to removal, as well as the third-party claims against Larry Roberts. As set forth above, Defendants filed a Motion to Dismiss their counterclaims

on August 4, 2025 (docket #33), and Plaintiff’s filed a notice of non-opposition to the motion on August 5, 2025 (docket #34). Therefore, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Its Counterclaims Pursuant to Federal Rules of Civil Procedure 41(a)(2) (docket #33) is GRANTED such that the counterclaims of 3500 Goliad Road, LP and Goliad, Inc. against Fulcrum Construction, Inc., and their third party claims against Larry Roberts are DISMISSED WITHOUT PREJUDICE such that these claims may be reasserted only in the event of a successful appeal by Fulcrum Construction, Inc. Having disposed of all claims asserted in this case, IT IS FURTHER ORDERED that the

Motion to Show Cause Why Defendants Should Not Be Held in Contempt of Court (docket #35) is DENIED WITHOUT PREJUDICE to reurging should Plaintiff wish to continue its pursuit of this claim given the status of this case and the response by Defendants. IT IS FURTHER ORDERED that any other pending motions are DENIED AS MOOT, and this case is now CLOSED. It is so ORDERED. SIGNED this 31st day of August, 2025.

a . ~jet FRED BJERY UNITED STATES DISTRICT JUDGE

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