Opinion
SA-19-CV-01194-FB
10-19-2023
RAUL SOLIS III, Plaintiff, v. CRESCENT DRILLING AND PRODUCTION, INC., CRESCENT DRILLING FOREMAN, INC., Defendants.
Honorable United States District Judge Fred Biery
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns Defendants' Amended Bill of Costs [#247-1], which was referred to the undersigned for disposition [#248]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In issuing this recommendation, the undersigned has reviewed Plaintiff's Notice of Opposition to Proposed Bill of Costs [#245], Defendants' Response to Plaintiff's Notice of Opposition to Proposed Bill of Costs [#246], Defendants' Memorandum of Law in Support of Its Motion to Tax Costs [#249], Plaintiff's Response to Defendants' Motion for Costs [#251], Defendants' Reply Brief in Further Support of Defendants' Motion to Tax Costs [#252], and all accompanying exhibits. For the reasons that follow, the undersigned will recommend granting Defendant's request for costs associated with original deposition transcripts and deposition exhibits for the witnesses deposed in this case but deny the request for costs associated with the video recording of depositions, incidental costs related to depositions, costs of court proceeding transcripts, pro hac vice fees, private process server fees, costs of obtaining copies of tax returns, and postage fees.
I. Background
This case was filed as a collective action to recover unpaid overtime compensation under the Fair Labor Standards Act, 29 U.S.C. 216, et seq. (“FLSA”). Plaintiff Raul Solis alleged that Defendants Crescent Drilling and Production and Crescent Drilling Foreman (oilfield project management companies providing staff to the oil and gas industry) are a joint enterprise that employed him and other similarly situated individuals as oilfield workers, misclassified them as independent contractors, and improperly paid them a day rate with no overtime compensation. The Court issued notice of this lawsuit to the a class of Plaintiffs, and over 30 Plaintiffs opted in to the lawsuit. Defendants thereafter moved to decertify the class, at which time only 11 individuals and Solis remained in the case.
Ultimately, Solis and the remaining opt-ins withdrew their opposition to the motion for decertification, and the Court issued an order dismissing the claims of all opt-ins and decertifying this action. Only Solis remained as Plaintiff. Defendants thereafter filed a motion for summary judgment against Solis, which the Court granted on November 2, 2022, and then entered a final judgment on the same day.
Defendants, as the prevailing party, filed their Bill of Costs on November 16, 2022, requesting $32,092.17 in costs associated with fees for transcripts, service, and various IRS fees related to tax returns obtained in discovery. Solis timely objected to Defendants' Bill of Costs and requested supporting documents. Defendants responded with over 100 pages of documentation [#246-1]. In accordance with the Court's Local Rules, the parties then met and conferred; Defendants supplemented their production; and the parties conferred again and agreed to allow Defendants to amend their Bill of Costs downwards. Defendants' Amended Bill of Costs was filed on December 7, 2022 [#247-1] and requests $27,268.47 in costs associated with their successful defense of this matter. Solis objects to all costs in the Amended Bill of Costs except for $1,251.95 for the written transcript of Solis's deposition at the “normal rate” of $3.65 per page.
II. Legal Standard
Rule 54(d) of the Federal Rules of Civil Procedure provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees- should be allowed to the prevailing party” in an action. This rule creates a “strong presumption” in favor of awarding costs to a prevailing party. U.S. ex rel. Long v. GSDM Idea City, L.L.C., 807 F.3d 125, 128 (5th Cir. 2015) (internal quotation and citation omitted). “[A] district court may neither deny nor reduce a prevailing party's request for cost[s] without first articulating some good reason for doing so.” Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 384 (5th Cir. 2012) (internal quotation and citation omitted).
The categories of taxable costs are expressly enumerated in 28 U.S.C. § 1920. This statute authorizes the recovery of the following six categories of costs: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) docket fees under section 1923 of this title; and (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. 28 U.S.C. § 1920. A court may decline to award the costs listed in the statute but may not award costs omitted from the list, “absent explicit statutory or contractual authorization to the contrary.” Cook Children's Med. Ctr. v. New England PPO Plan, 491 F.3d 266, 274 (5th Cir. 2007) (internal quotation and citation omitted).
Once an objection to a cost is raised, the party seeking costs bears the burden of verifying the costs were necessarily incurred in the case rather than incurred for the convenience of counsel. See Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 286 (5th Cir. 1991). The determination on whether to allow a cost is a factual one for the district court, and the Fifth Circuit accords district courts “great latitude” in making this determination. Id. at 285-86.
III. Analysis
Defendants request $27,268.47 in costs associated with their successful defense of this matter. These costs include the costs associated with (1) court proceeding transcripts; (2) pro hac vice fees; (3) private process server fees; (4) original deposition transcripts of Solis and eight other deponents as well as deposition exhibits; (5) video recordings of depositions; (6) incidental costs associated with depositions; and (7) fees incurred obtaining copies of tax returns of opt-in Plaintiffs from the Internal Revenue Service (“IRS”) and related postage fees. Solis objects to all requested costs except for the cost of Solis's original deposition transcript at the rate of $3.65 per page. The District Court should sustain Solis's objections to all the categories of costs sought by Defendants except for the cost of the original deposition transcripts and exhibits for eight of the nine depositions at issue. Solis's objections to costs associated with deposition transcripts and exhibits should be overruled, and the Court should tax a reduced amount of $11,043.70 in costs against Solis pursuant to Section 1920(2).
A. Transcripts of Court Proceedings
Defendants ask the Court to award costs of $256.70 for transcripts of court proceedings held on September 8, 2020, and February 22, 2021. Defendants argue that the minute entries were not available electronically for these hearings, and the transcripts were necessary to ensure timely compliance with the undersigned's rulings. Solis objects to these costs, and the District Court should sustain the objection.
Hearing transcripts are taxable where the prevailing party can show they were necessarily incurred for use in the case. Courts have awarded such costs, for example, where parties demonstrated that the pretrial proceedings for which the hearing transcripts were requested were particularly complex, involved numerous pretrial motions, and memorialized highly involved discussions between the parties. See West v. Perry, No. 2:07CV200, 2009 WL 2225579, at *4 (E.D. Tex. July 23, 2009), aff'd, 392 Fed. App'x 328 (5th Cir. 2010). In contrast, courts have found transcript costs not taxable where the hearing was more straightforward, a lawyer was present and could take notes, and the record demonstrated the transcript was requested not out of necessity but more for the convenience of the parties. Structural Metals, Inc. v. S & C Elec. Co., No. SA-09-CV-984-XR, 2013 WL 3790450, at *2 (W.D. Tex. July 19, 2013).
The proceedings at issue here were not complex. The first hearing on September 8, 2020, was on a single motion filed by Defendants related to the closure of the opt-in period. At the close of the hearing, the undersigned orally denied Defendants' motion and ordered any additional opt-in Plaintiffs to file consent forms within 60 days of the date the notice was disseminated. The undersigned then memorialized these oral rulings three days later in a short order. (Order [#81].) The hearing on February 22, 2021, involved several discovery motions. Again, the undersigned issued oral rulings at the close of the hearing, directing Defendants to notice the depositions of the opt-in Plaintiffs within three weeks of Defendants' receipt of the outstanding tax returns. The undersigned issued a written order that same day restating the Court's rulings. (Order [#157].)
Defendants are not entitled to recover costs associated with the transcripts from these two hearings. Defendants' counsel was present at the proceedings and had the opportunity to take notes and ask questions of the Court for clarification as to any of the rulings, which were ultimately memorialized in written orders.
B. Pro Hac Vice Costs
Defendants ask the Court to award costs in the amount of $400 for pro hac vice fees for four attorneys admitted to practice pro hac vice in this case on behalf of Defendants. Solis also objects to these costs, and the objection should be sustained.
Courts in the Western District of Texas have both permitted and denied the recovery of pro hac vice fees as taxable costs under the category of “fees of the clerk.” Compare Hobbs v. Alcoa Inc., No. A-04-CA-566 AWA, 2006 WL 8435708, at *4 n.8 (W.D. Tex. July 7, 2006), aff'd, 501 F.3d 395 (5th Cir. 2007) (finding pro hac vice fees can be taxed as “fees of the clerk”) with Midland Nat'l Life Ins. Co. v. Santana-Ayala, No. 5:19-CV-00591-JKP, 2020 WL 33598, at *5 (W.D. Tex. Jan. 2, 2020) (collecting cases disallowing pro hac vice fees as costs). Courts rejecting pro hac vice fees as taxable costs have emphasized that these fees “are an expense that an attorney pays for the privilege of practicing law in this Court and are not normally charged to a fee-paying client,” and concluded that “the opposing side should not be responsible for paying such costs and fees simply because [a party chose] to be represented by counsel who are not admitted to practice in this district.” Santana-Ayala, 2020 WL 33598, at *5 (alteration in original) (internal quotation and citation omitted). This reasoning is persuasive, and the District Court should not award the requested $400 in pro hac vice fees as costs.
C. Subpoena Service Fees
Defendants seek $5,009.14 in costs related to fees for service of summons and subpoenas. Attached to Defendants' briefing are 57 pages of invoices and e-mails related to payment to private process servers. Private process server fees are not specifically enumerated in Section 1920, which only specifies the taxation of fees paid to the United States Marshals Service for service of process. See Honestech, Inc. v. Sonic Sols., 725 F.Supp.2d 573, 585 (W.D. Tex. 2010) (finding private process server fees not properly taxable as costs), aff'd, 430 Fed. App'x 359 (5th Cir. 2011). The Fifth Circuit has held that a party properly objected to costs related to a private process server where counsel had agreed to accept service on behalf of the party; there was no objection to service by mail; and there was nothing exceptional about the parties or nature of the case. Cypress-Fairbanks Indep.t Sch. Dist. v. Michael F., 118 F.3d 245, 257 (5th Cir. 1997). Thus, “absent exceptional circumstances, the costs of a private process server are not recoverable under Section 1920” in this Circuit. Marmillion v. Am. Int'l Ins. Co., 381 Fed. App'x 421, 431 (5th Cir. 2010) (citing Cypress-Fairbanks, 118 F.3d at 257).
Defendants argue exceptional circumstances are present here. According to Defendants' briefing, the costs sought by Defendants relate to service of subpoenas on non-party business entities owned and operated by Solis and the previous opt-ins. (Idalski Decl. [#249-1], at ¶ 9.) Defendants argue the information obtained through the subpoenas could have been obtained through requests for production, but Plaintiffs were not cooperative in discovery. Defendants further contend the subpoenaed documents were essential in establishing that the opt-ins were independent contractors, as opposed to employees, and central to the motion to decertification and motion for summary judgment filed with the Court. The undersigned agreed with Defendants that the information sought through the third-party subpoenas was relevant to the independent-contractor inquiry and denied Plaintiffs' motion to quash seeking to quash these subpoenas. (Order [#133].) Yet even if the subpoenas related to discoverable information, Defendants have not established that the private process server fees were necessarily incurred in this case.
“[A]lthough many courts have recognized that service today is largely accomplished by private process servers instead of United States Marshals, and for that reason have allowed prevailing parties to recover private process server fees, courts that have allowed recovery of such fees typically do so only to the extent that the costs incurred do not exceed the costs that would have been incurred had the United States Marshal effected service.” Baisden v. I'm Ready Prods., Inc., 793 F.Supp.2d 970, 975 (S.D. Tex. 2011). In Baisden, the district court concluded that the costs for service of subpoenas by private process servers were not recoverable under Section 1920 because defendants failed to provide “any evidence of exceptional circumstances that required the use of private process servers or any evidence of what the United States Marshals Service would have charged for the same service.” Id.
Similarly, here, Defendants have not provided information demonstrating that the costs that Defendants incurred for private process servers is similar to what would have been incurred if the service had been completed using the United States Marshals. Moreover, while the undersigned did find that Defendants could subpoena these third-party entities, that is not the same as finding these costs were necessarily incurred. Defendants' litigation approach in this case was very aggressive, and while Defendants ultimately prevailed, that does not translate to a finding that all tactics by Defendants were reasonable and necessary. Defendants are thus not entitled to private process server expenses totaling $5,009.14, and the District Court should sustain Solis's objection.
D. Costs Associated with Depositions
Defendants ask the Court to tax $17,015.40 in costs associated with Solis's deposition as well as eight additional witness depositions. A prevailing party is entitled to recover the costs of taking, transcribing, and reproducing depositions that are “necessarily obtained for use in the case.” 28 U.SC. § 1920(2); see also Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993) (quoting Fogleman, 920 F.2d at 285). Defendants attach to their memorandum in support of their Amended Bill of Costs various itemized receipts reflecting costs incurred for the nine depositions at issues. (Deposition Invoices [#249-5], at 1-21.) These receipts include costs associated with original transcripts and exhibits; video deposition costs; court reporter fees; technology and administrative fees; fees for Zoom setup; fees for synchronizing MP4 files to transcripts; fees incurred for cancellation of depositions, court reporters, and conference rooms; and other incidental fees.
The invoices reflect that only eight of the nine depositions actually occurred. The deposition of Mr. McDaniel, who was at one time a lead Plaintiff, was canceled. (Invoices [#249-5], at 13-18.) Thus there is no deposition transcript costs for this Plaintiff.
The only portion of the deposition costs Solis does not contest is the $1,251.91 for the cost of his original deposition transcript at a rate of $3.65 per page, at the rate this Court charges for transcripts. The invoice for Plaintiff's deposition reflects a charge of $5.50 per page. (Solis Deposition Invoice [#249-5], at 21.) The District Court should tax costs against Solis for the eight original deposition transcripts and exhibits but not any of the additional categories of costs related to these depositions. This award of costs should not be further reduced based on the $3.65 per page rate requested by Solis. The District Court should award costs in the actual amount billed to Defendants for the original deposition transcripts and exhibits, which totals $11,043.70 rather than the requested $17,015.40.
i. Cost of Original Deposition Transcripts and Exhibits
The District Court should award costs of the eight deposition transcripts at issue and deposition exhibits. Section 1920(2) provides for the taxation of costs for “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” A deposition is necessarily obtained for use in the case “[i]f, at the time the deposition was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery.” Fogleman, 920 F.2d at 285. “While some cases hold that the costs of depositions are taxable only if they were either introduced in evidence or used at trial in examining or impeaching witnesses, the more equitable as well as more practical view is to allow the recovery of such expense if the taking of the deposition is shown to have been reasonably necessary in the light of facts known to counsel at the time it was taken.” Copper Liquor v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir. 1982), overruled on other grounds by J.T. Gibbons, Inc. v. Crawford Fitting Co., 790 F.2d 1193, 1195 (5th Cir. 1986).
The depositions at issue are of Solis, various opt-in Plaintiffs, and two third parties. The undersigned agrees with Defendants that they could not have known at the time they deposed various opt-in Plaintiffs that Solis and the opt-ins would ultimately withdraw their opposition to Defendants' motion for decertification and be dismissed from the case. These depositions were therefore necessarily obtained for trial preparation, not just discovery, and the transcripts of the depositions are taxable under Section 1920. As to the depositions of third parties, Defendants maintain that these individuals were identified as having knowledge of discoverable information pertinent to the parties' motions practice and/or trial. The District Court should also tax the costs of the transcripts of these depositions.
Along with the original deposition transcripts, the Court should award the costs associated with any exhibits to the depositions. Courts routinely permit the award of exhibit costs, finding that a party has a reasonable expectation that the depositions, as well as their associated exhibits, would be used for trial preparation. See, e.g., Neely v. PSEG Tex., LP, No. MO-10-CV-030, 2012 WL 12877922, at *4 (W.D. Tex. Oct. 25, 2012). Solis's objection as to exhibit costs should therefore be overruled.
Finally, the District Court should overrule Solis's objection to the per page cost of his deposition. The invoices provided to the Court by Defendants reflect the actual amount charged and paid for the deposition transcripts. The District Court should tax Solis for the transcripts in this amount.
In summary, the Court should award costs only for the original deposition transcripts for all eight depositions at issue, as well as deposition exhibits, for a total award of $11,043.70 instead of the requested $17,015.40. This amount is derived from the invoices attached to Defendants' memorandum in support of their Amended Bill of Costs. (Invoices [#249-5], at 2, 3.)
Original Transcript of Burton Bienvnenu and Exhibits
Invoice [#249-5], at 2
$1,577.75
Original Transcript of Juan Bustamante and Exhibits
Invoice [#249-5], at 3
$1,372.50
Original Transcript of Silvia Garza and Exhibits
Invoice [#249-5], at 5
$566.50
Original Transcript of Fritz John Hoeflein
Invoice [#249-5], at 6
$1,817.75
Original Transcript of Bruce Johnson
Invoice [#249-5], at 8
$1,147.25
Original Transcript of Victor Juarez and Exhibits
Invoice [#249-5], at 10
$1,078.00
Original Transcript Fernando Richard
Invoice [#249-5], at 20
$1,338.45
Original Transcript Raul Solis and Exhibits
Invoice [#249-5], at 21
$2,145.50
Total that Should Be Awarded
$11,043.70
ii. Cost of Video Depositions
Defendants, however, have not established the necessity of additional copies or the video recordings of the depositions. Again, Section 1920(2) expressly authorizes recovery of costs for “fees for printed or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920(2) (emphasis added). District courts diverge on their interpretation of Section 1920(2) and whether the statute should be read inclusively to allow for the recovery of costs for both print and video depositions or disjunctively to allow for the recovery of only one or the other. See Allstate Ins. Co. v. Plambeck, 66 F.Supp.3d 782, 786 (N.D. Tex. 2014) (collecting conflicting cases on statutory interpretation of Section 1920(2) but ordering recovery of costs associated with both deposition transcripts and video recordings, regardless of use at trial). Courts award both costs when considered “appropriate trial preparation under the circumstances of the particular case,” such as where the depositions were of witnesses who were central to the liability issues in the case or the deposition recordings might need to be played at trial. Favata v. Nat'l Oilwell Varco, LP, No. 2:12-CV-82, 2014 WL 5822781, at *2 (S.D. Tex. Nov. 10, 2014) (collecting cases). Many courts in the Western District of Texas, however, allow the recovery of the costs of videotaped depositions only where the video recordings are actually used at trial. See, e.g., Two-Way Media, LLC v. AT&T Servs., Inc., No. SA-09-CA-00476-OLG, 2013 WL 12090356, at *3 (W.D. Tex. Nov. 22, 2013); Structural Metals, Inc. v. S & C Elec. Co., 2013 WL 3790450, at *4 (W.D. Tex. July 19, 2013); Taylor v. Seton Healthcare, No. A-10-CV-650 AWA, 2012 WL 2396876, at *2 (W.D. Tex. June 22, 2012); Lear Siegler Servs. v. Ensil Int'l Corp., No. SA-05-CV-679-XR, 2010 WL 2595185, at *2 (W.D. Tex. June 23, 2010).
Defendants argue that the Court should award costs for video recordings of the depositions at issue because these depositions would have been used at trial. Defendants contend that this is a complex collective action and many of the opt-ins were difficult to locate and not responsive to counsel's attempts at communication. The undersigned is not persuaded that there are circumstances present in this case justifying the recovery of costs associated with both written transcripts and video recordings of the depositions in this case that did not proceed to trial. Defendants' general argument that additional video costs should be awarded because the video deposition would have been used at trial is insufficient to establish the necessity of these costs.
iii. Incidental Fees Associated with Depositions
Solis objects to the additional incidental charges related to the depositions, which includes charges for extra copies, color copies, tabs, delivery fees, electronic fees, technician fees, Zoom set up fees, court reporter fees, and fees to read and sign. These additional fees are not expressly recoverable as costs under Section 1920. See Clark v. Williamson Cnty., No. A-10-CV-869-LY, 2013 WL 5556024, at *2 (W.D. Tex. Oct. 7, 2013) (“[I]ncidental costs associated with depositions are not recoverable as costs.”) Nor have Defendants made an adequate showing as to their necessity. Therefore, Defendants are not entitled to recover the incidental costs associated with these depositions.
The costs related to the cancellation of David McDaniel's and Fernando Richard's depositions are also not taxable under Section 1920. See E.A.F.F. v. United States, No. SA-08- CA-124-XR, 2014 WL 2155263, at *2 (W.D. Tex. May 22, 2014) (holding a fee for a certificate of non-appearance is not allowed because a certificate of non-appearance is not a deposition transcript and is not authorized by § 1920); Shaw v. Hardberger, No. SA-06-CV-751-XR, 2010 WL 1424726, at *2 (W.D. Tex. Apr. 7, 2010) (“Section 1920 does not authorize costs for certificates of nonappearance.”).
E. Tax Records
Defendants ask the Court to award costs in the amount of $4,587.23 for the costs of obtaining copies of tax records obtained from the IRS for Plaintiff, opt-in Plaintiffs, and the businesses owned and operated by them. These costs include the fee charged by the IRS for Form 4506 used to request the records as well as postage charges for mailing Form 4506 and the payment to the IRS. Defendants assert that they repeatedly relied on these tax documents in advancing their motion for decertification. Attached to Defendants' briefing in support of their Amended Bill of Costs are over 50 pages of receipts reflecting delivery expenses, UPS and USPS shipping costs, and checks made payable to the IRS. (Tax Invoices [#249-7].)
First, the Court should sustain Plaintiff's objection to the costs associated with postage charges for mailing Form 4506. “Telecopy expenses, express delivery charges, and telephone expenses, like postal expenses, are not listed in the statute and represent ‘overhead' costs, not litigation costs.” Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Cap., Inc., 952 F.Supp. 415, 418 (N.D. Tex. 1997). As to the fees associated with Form 4506 itself, Plaintiff objects to these costs on the basis that copies of the tax returns were never necessary, as Defendants could have obtained everything needed for free by requesting online tax return transcripts rather than the returns themselves. Per Plaintiff, tax return transcripts contain all the information Crescent needed, including adjusted gross income, taxable income, and “items from any related forms and schedules filed.” Plaintiff also believes Defendants are attempting to recover costs incurred as a result of their own failure to submit Form 4506 correctly; per Plaintiff's assessment, the invoices reflect duplicative Form 4506 fees, meaning Defendants submitted the form two, three, or even four times for a single opt-in Plaintiff.
Defendants have not adequately responded to these objections. Defendants do not explain to the Court why the information in the tax transcripts was insufficient to address all matters related to the income and business ventures of the various opt-in Plaintiffs for purposes of their motion for decertification. Without this information, Defendants cannot establish the necessity of the actual tax returns for purposes of Section 1920. Nor have Defendants attempted to explain the duplicate invoices for various Plaintiffs. The Court should therefore sustain Plaintiffs' objections and decline to award costs associated with the tax returns.
IV. Conclusion and Recommendation
Having considered Defendants' Amended Bill of Costs, the parties' related filings, and the governing law, the undersigned recommends that Plaintiff's Objections [#251] be overruled in part and sustained in part as set forth herein and Defendants be awarded costs in the reduced amount of $11,043.70.
V. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. 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. 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. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).