Penrod Brothers Inc v. City of Miami Beach

• Court: District Court, S.D. Florida
• Decided: July 29, 2024
• Docket: 1:23-cv-23362
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:23-cv-23362-LEIBOWITZ/AUGUSTIN-BIRCH

PENROD BROTHERS, INC.,

Plaintiff,

v.

THE CITY OF MIAMI BEACH, FLORIDA,

Defendant.

______________________________________/ ORDER ADOPTING MAGISTRATE’S REPORT AND RECOMMENDATION

THIS MATTER was referred to United States Magistrate Judge Panayotta D. Augustin-Birch for a Report and Recommendation (“the R&R”) on Defendant’s Motion to Dismiss [ECF No. 28] and Defendant’s Unopposed Motion for Hearing on Motion to Dismiss [ECF No. 42]. Judge Augustin-Birch has since issued her R&R, recommending that the Court deny Defendant’s Motion to Dismiss, dismiss Plaintiff’s Fourth Amended Complaint without prejudice as a shotgun pleading, and deny Defendant’s Unopposed Motion for Hearing on Motion to Dismiss. [ECF No. 44]. Defendant submitted objections to the R&R, and Plaintiff submitted a Response to Defendant’s objections. [ECF Nos. 47 & 58]. After careful review of the filings, the applicable law, and the record, the Court adopts the R&R [ECF No. 44] in its entirety. “In order to challenge the findings and recommendations of the magistrate judge, a party must file written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection.” Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (cleaned up). The objections must also present “supporting legal authority.” L. Mag. J.R. 4(b). Once a District Court receives “objections meeting the specificity requirement set out above,” it must “make a de novo determination of those portions of the report to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge.” Macort, 208 F. App’x at 783–84 (cleaned up). To the extent a party fails to object to parts of the magistrate judge’s report, those portions are reviewed for clear error. Id. at 784 (cleaned up). Defendant submitted objections to the R&R. [ECF No. 47]. The Court has made a de novo

review of the issues that the objections to the R&R present. Having carefully reviewed the R&R, Defendant’s objections, and Plaintiff’s Response to Defendant’s objections, the Court finds the resolution of the issues as recommended by Judge Augustin-Birch to be sound and well-reasoned. The Court therefore adopts the R&R in its entirety. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Defendant’s Objections to Magistrate Judge Augustin-Birch’s Report and Recommendation [ECF No. 47] are OVERRULED. 2. Magistrate Judge Augustin-Birch’s Report and Recommendation [ECF No. 44] is AFFIRMED AND ADOPTED. 3. Defendant’s Motion to Dismiss [ECF No. 28] is DENIED. 4. Defendant’s Unopposed Motion for Hearing on Motion to Dismiss [ECF No. 42] is DENIED.

5. Plaintiff’s Fourth Amended Complaint [ECF No. 25] is DISMISSED WITHOUT PREJUDICE. 6. No later than August 12, 2024, Plaintiff shall file a Motion for Leave to File an Amended Complaint with a copy of the proposed Fifth Amended Complaint attached that cures the “shotgun pleading” deficiencies identified by Magistrate Judge Augustin-Birch in the R&R. If Plaintiff fails to do so, the Court may dismiss and close this case. 7. ‘The parties shall submit a Joint Scheduling Report for the remainder of the case no later than August 15, 2024. As part of the Joint Scheduling Report, the parties shall include reasonable time for the Defendant to file (and Plaintiff to respond to) a Motion to Dismiss the Fifth Amended Complaint, should Defendant wish to do so. 8. A Status Conference is scheduled for Friday, August 16, 2024, at 10:00 a.m. At the status conference, the parties must be prepared to address the overall status and procedural history of the case, any pending motions, and scheduling matters. For each party, at least one counsel of record must attend the conference in person at the United States Courthouse, 299 E. Broward Boulevard, Courtroom 202A, Fort Lauderdale, Florida 33301. DONE AND ORDERED in the Southern District of Florida on July 29, 2024. >, DAVID S, LEIBOWITZ UNITED STATES DISTRICT JUDGE

ce: counsel of record