Orbsat Corp. v. Seifert

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:21-cv-22436-GAYLES/TORRES

NEXTPLAT CORP. f/k/a ORBSAT CORP.,

Plaintiff,

v.

THOMAS SEIFERT,

Defendant. ________________________________________/

Counter-Plaintiff,

NEXTPLAT CORP. f/k/a ORBSAT CORP., and CHARLES M. FERNANDEZ,

Counter-Defendants. ________________________________________/

ORDER

THIS CAUSE comes before the Court on Chief Magistrate Judge Edwin G. Torres’ Report and Recommendation (the “Report”), [ECF No. 132], regarding: (1) Defendant/Counter-Plaintiff Thomas Seifert’s Motion to Dismiss Second Amended Complaint, [ECF No. 74]; and (2) Plaintiff/Counter-Defendants NextPlat Corporation’s and Charles M. Fernandez’s Motion to Dismiss Thomas Seifert’s Counterclaim, [ECF No. 80]. On April 22, 2022, the Court referred this case to Judge Torres, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pre-trial, non- dispositive matters and a report and recommendation on all dispositive matters. [ECF No. 56]. On January 9, 2023, Judge Torres issued his Report recommending that both Motions to Dismiss should be granted in part and denied in part. Seifert filed timely objections to the Report’s recommendation of dismissal as to Count IV of his Counterclaim. [ECF No. 138].1 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

objections are 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 objections are 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). Having conducted a de novo review of the record as to Count IV of Seifert’s Counterclaim and a clear error review as to all other issues set forth in the Motions, the Court agrees with Judge Torres’ well-reasoned analysis and conclusion that both Motions to Dismiss should be granted in part and denied in part.

Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Chief Magistrate Judge Edwin G. Torres’ Report and Recommendation, [ECF No. 132], is AFFIRMED AND ADOPTED and incorporated into this Order by reference. 2. Seifert’s Motion to Dismiss Second Amended Complaint, [ECF No. 74], is GRANTED as to Counts IV and V and DENIED as to Counts I, II, and III.

1 Seifert also filed “corrected” objections after the January 23, 2023, deadline set forth in the Report. See [ECF No. 141]. Therein, Seifert notes that the corrected objections “correct typographical errors and also contains a request for hearing that was inadvertently omitted in the original filing.” Id. at 1, n.1. Finding no good cause for a hearing on the issues, Seifert’s request for a hearing is denied. 3. NextPlat Corp. and Fernandez’s Motion to Dismiss Seifert’s Counterclaim, [ECF No. 80], is GRANTED as to Counts IV and V and DENIED as to Counts I, I, and Il. 4. The parties shall file their respective responses to Plaintiff's Second Amended Complaint, [ECF No. 73], and Defendant’s Counterclaim, [ECF No. 75], within twenty (20) days from the date of this Order. DONE AND ORDERED in Chambers at Miami, Florida, this 21st day gust, 2023.

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UNITED STATES DIST JUDGE