JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant Alpine Silica, LLC's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 6) and the responses, replies, and supplemental briefing thereto. For the reasons described below, the Court RECOMMENDS that Defendant's Motion be GRANTED.

I. BACKGROUND

Jesse Barco sued Alpine Silica, LLC for race discrimination and retaliation under Title VII and Chapter 21 of the Texas Labor Code on December 8, 2021. Pl.'s Compl. at | 79, 80 (ECF No. 1). Barco also sued for intentional and negligent infliction of emotional distress. Id. at ¶ 110-20. On March 17, 2022, Barco retained two additional attorneys. (ECF Nos. 2, 3). That same day, one of Plaintiff's new attorneys filed a request for issuance of summons. (ECF No. 4). The Clerk issued summons that day. (ECF No. 5).

Alpine filed its Rule 12(b)(6) Motion to Dismiss on May 6, 2022. Def.'s Mot. Alpine argues that Barco's case should be dismissed for two reasons: (1) Barco's claims are barred by the statute of limitations; and (2) Barco failed to serve Alpine within the statute of limitations or to exercise diligence in serving Alpine. Id. at 4, 5. Barco argues that his claim is not barred by limitations, requests an opportunity to amend his pleadings to state a facially plausible claim to relief, and argues that he exercised diligence in serving Alpine. Pl.'s Resp. at 3, 4, 5 (ECF No. 7).

II. LEGAL STANDARD

To avoid dismissal for failure to state a claim pursuant to Rule 12(b)(6), a plaintiff must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

The court determines whether the plaintiff has stated both a legally cognizable and plausible claim; the court should not evaluate the plaintiff's likelihood of success. Lone Star Fund V. (U.S.), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Based upon the assumption that all the allegations in the complaint are true, the factual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. A court, however, need not blindly accept each and every allegation of fact; properly pleaded allegations of fact amount to more than just conclusory allegations or legal conclusions masquerading as factual conclusions. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); see Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

When the plaintiff pleads factual content that allows the court to reasonably infer that the defendant is liable for the alleged misconduct, then the claim is plausible on its face. Iqbal, 556 at 678. The plausibility standard, unlike the “probability requirement,” requires more than a sheer possibility that a defendant acted unlawfully. Id. A pleading offering “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.

III. ANALYSIS

A. Barco filed suit within the statute of limitations.

Alpine argues that Barco's federal and state claims must be dismissed because they are barred by the statute of limitations. Def.'s Mot. at 4. Barco requests permission to amend his complaint to allege that the right-to-sue letter was issued on September 7, 2021, and that Barco received the letter a few days later. Pl.'s Resp. at 3-4. Plaintiff filed a Motion for Leave to File Plaintiff's Amended Complaint (ECF No. 12). Alpine did not oppose the Motion but reiterated its position that Plaintiff's cause of action must be dismissed because he failed to timely serve Alpine within the limitations period. Def.'s Resp. (ECF No. 13) at 2. The Court granted Barco's Motion for Leave to File Plaintiff's Amended Complaint. Thus, the Court will consider Barco's Amended Complaint in resolving the present dispute.

Title VII requires a plaintiff to file suit within ninety days of receipt of a right to sue letter from the EEOC. Nilsen v. City of Moss Point, Miss., 674 F.2d 379, 381 (5th Cir. 1982) citing 42. U.S.C. § 2000e-5(f)(1). Courts must treat the ninety-day period as a statute of limitations. Taylor v. Books a Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). Similarly, to bring a civil action for employment discrimination, the plaintiff must bring suit within sixty days after receiving a notice of the right to file a civil action. Tex. Labor Code § 21.254.

Barco argues that the Fifth Circuit has “undeniable [sic] held that [Section 21.254] only applies to the right-to-sue letter from the Texas Workforce Commission (TWC), not the United States Equal Employment Opportunity Commission (EEOC).” Pl.'s Resp. at 5. To support this conclusion, Barco cites to three cases from Texas Courts of Appeals. Id. In the Fifth Circuit, an EEOC letter is not interchangeable with a TCHR letter and is thus incapable of triggering the sixty-day filing period. Vielma v. Eureka Co., 218 F.3d 458, 464 (5th Cir. 2000).

Here, Barco alleges that “Plaintiff received the Notice of Right to Sue sometime after September 9, 2021.” Pl.'s Am. Compl. at | 11. Barco alleges that he received a notice of right to sue letter from the EEOC. Id. at | 10. Importantly, he does not allege that he received a notice letter from the TWC. Alpine does not provide the date of notice for the right to sue, if any, from the TWC. Accordingly, Alpine's motion to dismiss on Barco's TCHRA claim should be denied. See Weber v. East Lift Truck Supply, Inc., No. 6:21-CV-00317-JCB, 2021 WL 6010143, at *2 (E.D. Tex. Nov. 15, 2021), R. & R. adopted, No. 6:21-CV-00317, 2021 WL 5999452 (E.D. Tex. Dec. 20, 2021).

Barco filed this lawsuit on December 8, 2021. Pl.'s Compl. at 1. Absent more specific allegations regarding when Barco received the Notice letter, the Court must assume that he received it between September 10, 2021, and September 14, 2021. See Guzman v. Sam's Club, No. 1:21-CV-192, 2022 WL 4540978, at *5 (S.D. Tex. Aug. 5, 2022), R. & R. adopted, No. 1:21-CV-00192, 2022 WL 4543188 (S.D. Tex. Sept. 28, 2022) citing Duron v. Albertson's LLC, 560 F.3d 288, 290 (5th Cir. 2009) (holding that a notice of right to file a civil action that is mailed is “presumed received within seven days thereafter”). Even assuming Barco received the letter on September 10, 2021, the ninety-day period would have expired on December 9, 2021. Barco filed this suit on December 8, 2021. Thus, Barco filed his suit within the statute of limitations.

B. Barco did not exercise due diligence in failing to serve Alpine within the statute of limitations.

Alpine also argues that Barco's claims must be dismissed because he failed to timely serve Alpine within the limitations period. Def.'s Mot. at 5. Barco argues that he exercised due diligence in this matter by properly serving Defendant on April 18, 2022. Pl.'s Resp. at 5.

Texas law applies in a diversity case to determine whether plaintiffs toll a statute of limitations when they filed suit. Saenz v. Keller Indus. of Tex., Inc., 951 F.2d 665, 667 (5th Cir. 1992) citing Walker v. Armco Steel Corp., 446 U.S. 740 (1980). To toll the statute of limitations in Texas, a plaintiff must file suit and exercise diligence to effect service before the statute of limitations runs. Id. citing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). When a defendant demonstrates that service occurred after the limitations deadline, the burden shifts to the plaintiff to explain the delay. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).

Here, Alpine has shown that a summons was not issued to Alpine until March 17, 2022. Def.'s Mot. at 5, citing Issuance of Summons (ECF No. 5). This is more than three months after Barco filed suit and, as discussed above, more than three months after limitations expired. Barco acknowledges that Alpine was not served until April 18, 2022. Pl.'s Resp. at 7.

Barco argues that the three-month delay is not patently unreasonable citing to cases holding that ten, seventeen and one-half, and thirty-eight months demonstrated a failure to use diligence as a matter of law. Id. at 6 citing Gant, 786 S.W.2d at 260 (thirty-eight months); Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970) (seventeen and a half months); and Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.) (ten months). Barco also argues that he was securing counsel for the case. Id. at 6. Barco finally argues that his due diligence is demonstrated by the fact that once he obtained new counsel who entered an appearance, that counsel submitted a request for the issuance of summons. Id. at 7.

As Alpine argues, however, Barco was represented by counsel when he filed his complaint. Def.'s Reply at 4, citing Pl.'s Orig. Compl. at 14. In fact, the attorney who filed the Complaint has not filed a motion to withdraw and is still counsel for Barco in this matter. The fact that Barco was looking for additional counsel and failed to request an issuance of summons does not demonstrate due diligence. Barco failed to provide any explanation as to why his first attorney did not request issuance of summons during the ninety-nine-day period between December 8, 2021, and March 17, 2022. See Pl.'s Resp. Additionally, Barco's arguments that ninety-nine days was a reasonable amount of time are unavailing. Texas courts have held that service seventy-six days after the running of a limitations demonstrated a lack of due diligence. Roberts v. Padre Island Brewing Co., Inc., 28 S.W.3d 618, 622 (Tex. App.-Corpus Christi-Edinburg 2000). Thus, Barco failed to provide an explanation as to why summons was not effected within a reasonable amount of time and Alpine's Motion to Dismiss should be granted.

C. Alpine waived its argument under Rule 4(m).

Alpine raised a third issue for the first time in its reply brief. In its reply, Alpine argued that the Court should dismiss Plaintiff's Complaint for failure to comply with Rule 4(m). Def.'s Reply at 6. Nothing in Alpine's Motion to Dismiss can be construed as discussing Rule 4(m) and its 90-day service requirement. See generally Def.'s Mot.

Alpine waived this argument. The scope of a reply brief is limited to addressing the arguments raised in the response. Mission Toxicology, LLC v. Unitedhealthcare Ins. Co., 499 F.Supp.3d 350, 359 (W.D. Tex. 2020) citing Petty v. Portofino Council of Coowners, Inc., 702 F.Supp.2d 721, 729 n.3 (S.D. Tex. 2010). It is improper for a movant to raise wholly new issues in a reply brief. Id. citing Weems v. Hodnett, No. 10-CV-1452, 2011 WL 2731263, at *1 (W.D. La. July 13, 2011). Further, arguments raised “for the first time in a reply brief are generally waived.” Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010). Alpine, therefore, waived its Rule 4(m) argument.

IV. CONCLUSION

For the reasons outlined above, the undersigned RECOMMENDS that the Defendant's Motion to Dismiss (ECF No. 6) be GRANTED.

V. OBJECTIONS

The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.