B& G Opa Holdings, Inc. v. Daughtrey

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:18-cv-23269-GAYLES/MCALILEY

B&G OPA HOLDINGS, INC., and B&G OPA LAND HOLDINGS, LLC,

Plaintiffs,

v.

CITY OF OPA LOCKA, FLORIDA,

Defendant. /

ORDER ADOPTING AND AFFIRMING MAGISTRATE’S REPORT AND RECOMMENDATIONS

THIS CAUSE comes before the Court on Magistrate Judge Chris M. McAliley’s Report and Recommendations (the “Report”) [ECF No. 107] on Plaintiffs B&G Opa Holdings, Inc., and B&G Opa Land Holdings, LLC’s (“B&G Opa Holdings”) Motion for Partial Summary Judgment, [ECF No. 68], and Defendant City of Opa Locka, Florida’s Motion for Summary Judgment, [ECF No. 80] (collectively, the “Motions”). The matter was referred to Magistrate Judge McAliley, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pretrial, non-dispositive matters, and for a Report and Recommendation on any dispositive matters. [ECF No. 34]. Judge McAliley’s Report recommends that the Court grant the Motions in part. Plaintiffs and Defendant timely filed objections to the Report. Plaintiffs objected to Judge McAliley’s recommendation withholding summary judgment in favor of Plaintiff as to Count VIII. [ECF No. 109]. Defendant objected to Judge McAliley’s recommendation granting summary judgment in favor of Plaintiffs as to Counts I and II. [ECF No. 110]. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see

also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). The Court has conducted a de novo review of the record and concludes that Plaintiffs’ and Defendant’s objections are overruled. The Court agrees with Judge McAliley’s well-reasoned analysis and conclusion that B&G Opa Holding is entitled to summary judgment as to Counts I and II, and that no party is entitled to summary judgment as to Count VIII. Plaintiffs argue in their objection that they are entitled to summary judgment for Count VIII, notwithstanding Defendant’s defense of unclean hands. They claim that because they bring

a facial challenge to the constitutionality of the City of Opa-Locka’s sign code, the facts of this case, including the alleged misrepresentations Plaintiff made in connection with its application for an occupational license, are irrelevant. [ECF No. 109 at 17 (citing Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 674 (11th Cir. 1984) (“In a facial challenge such as this, the facts of the challenging party’s case are irrelevant.”)]. However, it is unclear whether an unclean hands defense is applicable to this type of constitutional challenge in the Eleventh Circuit. In their prayer for relief for Count VIII, Plaintiffs seek a permanent injunction enjoining the City from enforcing the code against Plaintiffs, as well as costs, fees, and other equitable relief. As there are disputed issues of fact regarding Plaintiffs’ representations to Defendant about signage, which may be relevant to the relief requested, these issues are best left for trial. The Court, therefore, agrees with Judge McAliley’s analysis and recommendations and adopts her Report in full. Accordingly, itis ORDERED AND ADJUDGED as follows: (1) Judge McAliley’s Report and Recommendations, [ECF No. 107], is AFFIRMED AND ADOPTED and incorporated into this Order by reference; (2) Plaintiffs’ Motion for Partial Summary Judgment, [ECF No. 68], is GRANTED IN PART as to Counts I and II of the Second Amended Complaint. The Motion is otherwise DENIED. (3) Defendant City of Opa-locka’s Motion for Summary Judgment, [ECF No. 80], is GRANTED IN PART as to Counts V, VI, and VII of the Second Amended Complaint. The Motion is otherwise DENIED. DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of September, 2020. Df DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE