Opinion
CIVIL ACTION NO. SA-02-CA-0031 Dkt-IV (NN)
March 5, 2003
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
To: Docket IV United States District Judge
I. Introduction
Pending before me for a Report and Recommendation is the defendant's amended motion to dismiss for lack of personal jurisdiction (Docket Entry 15). As discussed in this Report, it is my recommendation that defendant's motion be DENIED .I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained. Docket Entry 20.
II. Statement of the Case
On December 11, 2001, the plaintiff instituted this action in the District Court for the 218th Judicial District of Atascosa County, Texas, against the defendant. In its original petition, the plaintiff asserts claims for breach of contract, promissory estoppel and unjust enrichment, claims which arose out of a business relationship involving the purchasing (through a sworn account) of light fixture kits from the plaintiff. The plaintiff, Ergonomic Lighting System, Inc. ("ELS"), is a Texas corporation with its principal place of business in Pleasanton, Atascosa County, Texas, while the defendant, Commercial Petroleum Equipment/USALCO ("CPE/USALCO") is a California corporation with its principal place of business in Sun Valley, California.
Among other products, ELS sells energy-efficient lighting systems for use and installation in gas stations and convenience stores. According to its President, Amos Carter, "all products sold by ELS are shipped from [its Pleasanton] location." Docket Entry 16, Exhibit A. The light kits purchased by defendant were intended to be distributed primarily to defendant's customers and/or contacts in the California area as a means to deal with the state's energy crisis.
CPE's primary business is the distribution of petroleum equipment. Through its merger with USALCO, it also distributes convenience store equipment in addition to manufacturing custom wood cabinetry and counters primarily for oil company businesses. Defendant is the largest supplier on the West Coast, with an inventory in excess of 400 lines of equipment, and it is one of the top five suppliers of its kind nation-wide. Docket Entry 16, Exhibit A, e-mail correspondence dated May 30, 2001.
On January 11, 2002, the defendant removed the action to federal district court on diversity grounds pursuant to 28 U.S.C. § 1332, 1441 and 1446. Docket Entry 1. Simultaneous with its notice of removal, defendant moved to dismiss the case challenging the court's in personam jurisdiction. Docket Entry 2. The court, however, denied the motion, subject to re-urging at a later time after plaintiff was able to conduct limited discovery on the issue of jurisdiction. Docket Entry 11.
At the conclusion of plaintiff's discovery, the defendant reasserted its challenges to the personal jurisdiction of this court by filing an amended motion to dismiss, presumably under FED. R. Civ. P. 12(b)(2). Docket Entry 15. In that motion, the defendant argues that it lacks the required "minimum contacts" with the state of Texas, the forum state, for this court to assert jurisdiction over it. Even assuming, arguendo, that "minimum contacts" are established, the defendant contends that traditional notions of fair play and substantial justice would still preclude this court from asserting jurisdiction over it. Plaintiff has filed a response opposing the defendant's amended motion and defendant has filed a reply brief to plaintiff's response. Docket Entries 16 and 19. Also, more recently, the parties filed letter briefs apprising the court of the recent decision rendered by the Texas Supreme Court on the issue of personal jurisdiction. Docket Entries 23 and 24 (discussingAmerican Type Culture Collection, Inc., v. Coleman, 83 S.W.3d 801, 805-07 (Tex. 2002)). The Scheduling Order deadlines entered in the case have been suspended pending a ruling on the defendant's amended motion to dismiss. Docket Entries 27 and 28.
Construing the facts in the light most favorable to the plaintiff, as I must do at this juncture of the case, it is my opinion that plaintiff has met its prima facie burden of establishing the general personal jurisdiction of this court over the defendant. Plaintiff has established that defendant's business contacts throughout the years in the state of Texas, and considering them in toto, are sufficiently systematic and continuous to support a reasonable exercise of jurisdiction. Indeed, based on the totality of defendant's contacts in the state of Texas, the defendant has purposefully availed itself of the privilege of conducting business activities within the state, thus invoking the benefits and protection of its laws. Traditional notions of fair play and substantial justice, as argued by the defendant in this case, do not swing the pendulum against the exercise of this court's personal jurisdiction over the defendant. Accordingly, and as set forth more fully below, it is my recommendation that defendant's amended motion to dismiss be DENIED .
III. Analysis
A. Applicable Legal Standard
In a diversity case such as this one, a federal court may only exercise jurisdiction over a nonresident corporate defendant to the extent allowed under state law. See Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 214 (5th Cir. 2000). It has been held that the reach of the Texas long-arm statute is equivalent to that of the United States Constitution, and thus, the only question before the court is whether or not the exercise of personal jurisdiction over the defendant would offend the Due Process clause of the Fourteenth Amendment. Id. See also TEX. CIV. PRAC. REM. CODE ANN. § 17.042 (Vernon 1997).
In discussing the legal standard applicable to the instant case, I have taken into consideration the latest pronouncement rendered by the Texas Supreme Court on the subject of personal jurisdiction. Coleman, 83 S.W.3d at 805-07.
"The Due Process clause . . . permits the exercise of personal jurisdiction over a nonresident defendant when (1) that defendant has purposefully availed himself of the benefits and protection of the forum state by establishing 'minimum contacts' with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice." Alpine View Co. Ltd., 205 F.3d at 215 (citations omitted). The defendant's conduct and connection with the forum state must be such that it should reasonably anticipate being haled into court in the forum state. See Holt Oil Gas Corporation v. Harvey, 801 F.2d 773, 777 (5th Cir. 1986),cert. denied, 481 U.S. 1015 (1987).
"Minimum contacts" may be established sufficient for a court to assert either specific jurisdiction or general jurisdiction. Specific jurisdiction is appropriate where the corporation has purposefully directed its activities at the forum state and the "litigation results from alleged injuries that 'arise out of or relate to' those activities."See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (in turn quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). To exercise specific jurisdiction, the court must examine the relationship among the defendant, the forum, and the litigation to determine whether maintaining the suit offends traditional notions of fair play and substantial justice. See Shaffer v. Heitner, 433 U.S. 186, 204 (1977). Even where specific jurisdiction is lacking, however, the court may nevertheless exercise "general jurisdiction" based on a defendant's contacts with the forum unrelated to the controversy.Helicopteros, 466 U.S. at 414.
To exercise general jurisdiction, the court must determine whether "the contacts are sufficiently systematic and continuous to support a reasonable exercise of jurisdiction." Harvey, 801 F.2d at 777 (citations omitted). "General jurisdiction can be assessed by evaluating contacts of the defendant with the forum over a reasonable number of years, up to the date the suit was filed." Access Telecom, Inc. v. MCI Telecommunications Corporation, 197 F.3d 694, 717 (5th Cir. 1999), cert. denied, 531 U.S. 917 (2000); and Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569-70 (2d. Cir.) ("In general jurisdiction cases, district courts should examine a defendant's contacts with the forum state over a period that is reasonable under the circumstances up to and including the date suit was filed to assess whether they satisfy the 'continuous and systematic' standard; the determination of what period is reasonable in the context of each case should be left to the court's discretion."),cert. denied, 519 U.S. 1007 (1996). For general jurisdiction purposes, the court does not view each contact in isolation. Rather, all contacts must "be carefully investigated, compiled, sorted, and analyzed for proof of a pattern of continuing and systematic activity." See Schlobohm v. Schapiro, 784 S.W.2d 355, 359 (Tex. 1990); and Access Telecom Inc., 197 F.3d at 717 ("In determining whether nonresident defendant's contacts with the forum state are sufficient to establish general personal jurisdiction, contacts must be examined "in toto" rather than examining each contact in isolation from the others."). It should also be noted that the court is not concerned with the quantity of the contacts, but rather with the nature and quality of those contacts. Id. See also Coleman, 83 S.W.3d at 806.
Where, as here, the court resolves the issue without an evidentiary hearing, the party asserting jurisdiction (in this case the plaintiff) need only present sufficient facts to establish a prima facie case in support of jurisdiction. See Alpine View Co. Ltd., 205 F.3d at 215. The party's uncontroverted allegations are to be accepted as true, and all conflicts between the facts contained in the parties' affidavits and other documentation are likewise to be resolved in the party's favor.Id. Further, the district court's determination of the exercise of personal jurisdiction over a defendant is a question of law subject to a de novo review. See Felch v. Transportes Lar-Mex SA De CV, 92 F.3d 320, 324 (5th Cir. 1996).
According to the jurisdictional plea made in its original petition filed in state court, plaintiff claims that the court should exercise general jurisdiction over defendant "because [defendant] has conducted business in Texas and has had other contacts with this state." Docket Entry 1, Plaintiff's Original Petition, § III, at 2. Nevertheless, in responding to defendant's amended motion to dismiss, plaintiff also asserts that this court may exercise specific jurisdiction as well. Docket Entry 16, at 4-6. I will, thus, proceed to first examine whether an exercise of specific jurisdiction is permissible.
B. Has Plaintiff Made a Prima Facie Showing of Specific Jurisdiction?
Plaintiff relies on the following contacts by defendant with Texas relating to the instant controversy: (1) defendant knew that ELS was a Texas-based company; (2) defendant generated purchase orders which reflected ELS' Texas address, and were directed to ELS in Texas; (3) said purchase orders called for the product to be shipped to "CPE/USALCO from Texas;" (4) defendant engaged in extensive telephonic discussions and e-mail correspondence with ELS "concerning the shipments, the product and [defendant's] overdue account" and (4) defendant mailed payments to ELS in Texas in partial performance of its contractual obligations. Docket Entry 16, at 4. Plaintiff further states that "[i]t is difficult to see how CPE/USALCO could argue it did not know that ELS could file an action against it in Texas for failure to pay for the purchase orders." Id. and fn. 13. Despite plaintiff's assertions, these limited contacts, are, in my opinion, insufficient to support an exercise of specific jurisdiction.
The Fifth Circuit has consistently held that merely contracting with a resident of the forum state is insufficient to subject the nonresident to the forum's jurisdiction. See Harvey, 801 F.2d at 778; Colwell Realty Investments, Inc. v. Triple T Inns of Arizona, Inc., 785 F.2d 1330, 1334 (5th Cir. 1986); and Stuart v. Spademan, 772 F.2d 1185, 1192-93 (5th Cir. 1985). See also Burger King Corp., 471 U.S. at 462. Further, the fact that defendant mailed payment checks to Texas does not weigh heavily in the court's determination. See C H Transportation Co. v. Jensen Reynolds Construction Co., 719 F.2d 1267, 1269-70 (5th Cir. 1983) (payment mailed to Texas is hardly significant in terms of purposeful availment), cert. denied, 466 U.S. 945 (1984); Hydrokinetics Inc. v. Alaska Mechanical Inc., 700 F.2d 1026, 1028-29 (5th Cir. 1980) ("Nor do [the courts] weigh heavily the mailing of payment checks into the forum state in exchange for the goods."), cert. denied, 466 U.S. 962 (1984); and Stuart, 772 F.2d at 1194 ("[defendant's] mailing of payments to the plaintiffs in Texas can hardly be termed significant in terms of determining purposeful availment of the benefits of the forum state's laws."). Finally, the exchange of communications between the parties, whether by e-mail or through telephone, in the course of developing and carrying out the contract is in itself also insufficient to constitute purposeful availment of the benefits and protections of Texas law. See Patterson v. Dietze, Inc., 764 F.2d 1145, 1147 (5th Cir. 1985) (numerous telephone calls from defendant to forum during course of performance insufficient to support specific jurisdiction). See also Harvey, 801 F.2d at 778; Stuart, 772 F.2d at 1193; and Benjamin v. Western Boat Building Corp., 472 F.2d 723, 729 (5th Cir.), cert. denied, 414 U.S. 830 (1973).
As discussed more fully below, I do not question plaintiff's entitlement to bring a breach of contract claim against the defendant in Texas based on the defendant's alleged failure to pay for the purchase orders in full. Nevertheless, my reluctance to recommend the exercise of specific jurisdiction in this case is further supported by the fact that the retrofit light fixtures made the bases of the purchase orders were intended to reach customers outside of Texas, and mainly those in the states of California, Arizona and Nevada. Docket Entry 15, at 4 and Exhibit A. Defendant intended to serve as a conduit for the plaintiff to enter the California/West Coast market. In other words, besides making the purchase of the retrofit light kits from plaintiff, a Texas-based company, defendant did not attempt to profit from Texas by distributing said product to customers within the state. Under these circumstances, I cannot conclude that specific jurisdiction has been established.
Because, in my opinion, insufficient contacts exist between Texas, defendant, and the instant controversy to support an exercise of specific jurisdiction, I will proceed to consider whether the exercise of general jurisdiction is proper.
My conclusion that "specific" jurisdiction is lacking means only that due process requirements are not satisfied solely by defendant's contacts with Texas relating to the instant controversy. "A finding of no specific jurisdiction in no way precludes [the court] from turning to examine the totality of defendant's contacts, including all contacts related and unrelated to the present controversy, to determine if 'minimum contacts' exist." Harvey, 801 F.2d at 778 fn. 3.
C. Has Plaintiff Made a Prima Facie Showing of General Jurisdiction?
Defendant's general contacts with Texas include the following: (1) defendant applied for, and was issued, a Texas sales and use tax permit in 1994; (2) consistent with its permit and Texas tax laws, defendant reported sales and paid state and local use taxes to the State Comptroller from 1999 to 2002; (3) defendant maintains an interactive website to sell its products and services and said website can be accessed by Texas residents and business entities; and (4) defendant has for years maintained business relationships with other Texas business entities. Docket Entry 16, at 6-10.
Regarding the defendant's application for a Texas sales and use tax permit, an application that was processed and approved in 1994 (seven years prior to the controversy made the basis of this case), the plaintiff argues that in applying for said permit, defendant considered itself "a corporation intending to do business in Texas." Docket Entry 16, at 7 and Exhibits E and F. As such, defendant was required under Texas law to report the sales made in the state and to pay any state or local use taxes, to the extent they were owed, as a result of its business activities in the state. The application for the permit specifically states that a person must submit the application if he is a "sole owner, partnership, corporation or other organization who intends to do business in Texas" and is either "selling tangible personal property or providing taxable services in Texas or to customers in Texas; and/or acquire[s] tangible personal property or taxable services from out-of-state suppliers who do not hold Texas Sales and Use Tax permits."Id. at Exhibit F (Emphasis added). While defendant maintains that it applied for the permit at the request of a potential customer and the particular business relationship for which it originally sought the permit was never consummated, the fact remains that the permit never became obsolete or was revoked.
At least defendant has not maintained that it has.
Further, as plaintiff points out, Section 151.403 of the Texas Tax Code states that a person subject to the sales tax shall file a report and that "a retailer engaged in business in the state" shall file a tax report. Docket 16, at 7 n. 28. It is undisputed that defendant regularly filed Texas sales tax returns as required by the laws of the state. Indeed, defendant reported sales and paid state and local use taxes, when required, to the Texas State Comptroller from 1999 to 2002. For example, according to the defendant's tax returns obtained by plaintiff during the discovery period, in the year 2001, defendant reported total sales in the amount of $244,995.00 none of which was apparently subject to state tax. For the year 2002, defendant reported total sales in the amount of $13,580.70 of which $5,541.00 was subject to state tax. In that same tax form, defendant reported that it owed $346.31 of state use tax and $110.83 in local use tax, and that it paid to the Texas State Comptroller the total amount of $457.14. For the quarter period ending on March 31, 2000, defendant reported $2,524.00 total sales conducted in the state of which $2,136.00 was taxable. The defendant in that same quarter period paid the State Comptroller a total amount of $176.18 in state and local taxes. And for the quarter periods ending on June 30, 1999, September 30, 1999 and December 31, 1999, defendant reported sales conducted in the state (of approximately $9,700.00), but apparently these were not subject to state or local taxes. Id. at Exhibit G.
My review of the evidence shows that defendant was doing business in Texas on a continuing and systematic bases, and as a result, was required to obtain a Texas sales tax permit and submit tax returns to the state. While defendant characterizes its business in Texas as constituting a minimal or minuscule fraction of its overall profits, "it is the quality and nature of the defendant's contacts, rather than their number, that is important to the minimum-contacts analysis." See Coleman, 83 S.W.3d at 806.
Besides its Texas sales tax permit and tax returns, plaintiff has made a sufficient prima facie showing that defendant has engaged in business with either Texas-based corporations or with out-of-state corporations that have locations in the state. When asked by plaintiff in a propounded Interrogatory to "list all persons or entities in Texas with whom CPE has conducted business including but not limited to, purchasing, or selling products, services or supplies," defendant provided the following answer:
(1) CPE ordered product from the local, non-Texas representatives (located in California, Arizona, and/or Nevada) of a few Texas entities. These entities are: Autogas Systems, Inc., Flex-Ing, Inc.; Lane Supplies, Inc.; and Wayne Division Dresser Industries;
(2) A few Texas entities called on CPE and have sold product to CPE outside of Texas. CPE does not call on these companies, nor has CPE in any other way solicited business from these entities. These entities are: El Paso Tank; Ergonomics Lighting System, Inc., May Advertising; and SGI Integrated Graphics Systems;
(3) A few Texas entities called on CPE outside of Texas to order a product, which CPE ships to such entities. These entities are: Cielo Vista Chevron; DH Pump Service, Inc., EJ Ward Inc.; Gilbert Petroleum; Kinley Construction; Tanknology; United Pump Supply Company; White's Pump Supply Company; and
(4) The local California representative of Diamond Ultramar Shamrock ("Diamond Shamrock"), a Texas entity, ordered two monitoring systems from CPE in 1999, and CPE shipped the requested goods to Diamond Shamrock in Texas at Diamond Shamrock's request.
Docket Entry 15, at Exhibit B, plaintiff's Interrogatory No. 4.
In addition, plaintiff adduced uncontroverted evidence that defendant has maintained exclusive distributorship arrangements with businesses that have distribution facilities in Texas, such as the Xerxes Corporation and Environ Products, Inc. Docket Entry 16, at Exhibit A, e-mail correspondence dated May 25, 2001. This evidence, in my opinion, clearly establishes that defendant conducted regular business in the Texas, sufficient enough for this court to conclude that defendant "purposefully availed itself of the Texas marketplace" such that it could reasonably anticipate being called into court in Texas.
It should also be noted that plaintiff relies on the "interactivity" of the defendant's website in support of its position that this court should assert its general jurisdiction over the defendant. For instance, plaintiff maintains that the defendant's website:
is not merely a passive, advertisement website. It allows users [to] communicate by e-mail with anyone in the company concerning its products and services and contains links to websites for companies whose products are offered by CPE/USALCO. The site also allows users to download credit applications with CPE/USALCO. In addition, CPE/USALCO's website lists a number of manufacturers it says it 'represents,' including two, Environ Products, Inc. and Xerxes Corp., which have facilities located in Texas. Docket Entry 16, at 9.
Even though defendant questions the plaintiff's use of its website to establish general jurisdiction, courts have indeed considered a defendant's website when determining whether sufficient contacts exist to confer general jurisdiction. See Mink v. AAAA Development LLC, 190 F.3d 333, 335-37 (5th Cir. 1999). As plaintiff argues, "[w]hile the website, standing alone, may not be sufficient to satisfy a finding of general jurisdiction, the combination of the website and the other purposeful contacts with Texas constitute minimum contacts to confer personal jurisdiction." Docket Entry 16, at 9.
As I indicated earlier in this Report, determining the existence of personal jurisdiction does not involve an examination of each of defendant's contacts with Texas in isolation from one another. Rather, an examination of defendant's contacts in toto is required in order to determine whether they constitute the kind of continuous and systematic contacts required to satisfy due process. In my opinion, the record in this case reveals that defendant has maintained constant and extensive business connections with Texas. In my view, these contacts differ both qualitatively and quantitatively from the sort of "random," "fortuitous," or "attenuated" contacts which will not support an exercise of personal jurisdiction. Moreover, I note that the instant controversy arises out of one of defendant's business contacts with Texas. While that contact in my opinion was not sufficient to support an exercise of specific jurisdiction, the fact that some connection exists between defendant, the forum, and the controversy involved in the instant case should nevertheless be considered relevant to the court's determination. Based on the foregoing analysis and in light of the particular circumstances presented in this case, I conclude that defendant has sufficient minimum contacts with Texas to support an exercise of personal jurisdiction.
D. Do Traditional Notions of Fair Play and Substantial Justice Preclude this Court from Exercising Personal Jurisdiction Over the Defendant?
As noted in Harvey, "[m]inimum contacts analysis is designed to protect an individual's liberty interest in not being haled into a distant or inconvenient forum . . . [internal citation omitted]. This analysis requires a fact-intensive fairness inquiry for determining whether minimum contacts exist." 801 F.2d at 779 fn. 5. Further, "[w]hile the distinction between 'general' and 'specific' jurisdiction provides an useful analytic device, the use of these categories does not alter the fundamental focus of the minimum contacts inquiry." Id.
In my opinion, maintenance of this action against the defendant in Texas will not offend traditional notions of fair play and substantial justice. In reaching this conclusion, consideration has been "given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded to the respective parties, and the basic equities of the situation."Motiograph, Inc. v. Check-Out Systems, Inc., 573 S.W.2d 606, 608 (Tex.Civ.App.-Eastland 1978, writ ref'd) (reversing the district court's decision to dismiss the suit for lack of personal jurisdiction, finding that defendant's affirmative acts in "representing" a Texas corporation as an equivalent dealer in South Carolina and in sending its employees to Texas to learn how to sell and service the equipment, subjected the defendant to the personal jurisdiction of a Texas court).
The fact that plaintiff (a Texas-based corporation) has brought suit in this forum as the injured party, provides Texas with a significant interest in providing a forum for this action. See Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1173 (5thCir. 1985). Moreover, defendant, a company with substantial resources and a top player in the distribution of petroleum equipment nation-wide, has not established that it will be unreasonably inconvenienced by being required to defend the action in Texas. While this litigation may require some travel for the defendant, courts have consistently held that when a defendant has conducted some business activity in the forum state, "it usually will not be unfair to subject it to the burdens of litigating in another forum for disputes relating to such activity." Burger King Corp., 471 U.S. at 474. See also EMC Residential Mortgage Corp. v. Burrow Closing Management Corporation, No. Civ.A.3:01CV1461-P, 2002 WL 180884, at *4 (N.D. Tex. Feb. 1, 2002) (in asserting personal jurisdiction over the California defendant, the court gave weight to the parties' ongoing contractual relationship and to the fact that the contract in question was partially performable in Texas). While defendant states that the proper forum state is California based on the alleged defective nature of plaintiff's product, for which defendant has purportedly filed a separate suit in that state, defendant has failed to provide any reasons which would lead me to believe that its defective product claim cannot be properly adjudicated in Texas. In accordance with my assessment, finding a sufficient connection between the defendant. the forum, and the controversy involved in the instant case, it is my recommendation that substantial justice and fair play are properly accommodated in this case. Id.
IV. Recommendation
Based on the foregoing, I recommend that the District Court exercise personal jurisdiction over the defendant because such exercise is within the bounds of due process. Accordingly, defendant's amended motion to dismiss for lack of personal jurisdiction (Docket Entry 15) should be DENIED . Plaintiff in my opinion has established the defendant's minimum contacts with Texas to support the exercise of personal jurisdiction over it, and that to do so, comports with traditional notions of fair play and substantial justice.V. instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 149-152 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).