Series 15-09-321 v. State Farm mutual Automobile Insurance Company

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 23-22982-CV-WILLIAMS

SERIES 15-09-321,

Plaintiff,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant.

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ORDER THIS MATTER is before the Court on U.S. Magistrate Judge Lisette M Reid’s Report and Recommendation (DE 144) (“Report”) on Defendant’s Motion to Dismiss the Second Amended Complaint (DE 130) (“Motion”). In the Report, Judge Reid recommends granting, in part, and denying, in part, Defendant’s Motion. Specifically, the Report finds that Plaintiff adequately alleged standing and sufficient facts to establish a claim for Counts I through III of the Second Amended Complaint (DE 127).1 (DE 144 at 5–8; 12–15.) Separately, the Report finds that Plaintiff failed to allege standing to bring Counts IV and V of the Second Amended Complaint (DE 127).2 (DE 144 at 8–11.) Plaintiff filed its Objections to the Report (DE 149) and Defendant filed its Response (DE

1 Counts I and II of the Second Amended Complaint allege a private cause of action under 42 U.S.C. § 1395y(b)(3)(A) for settlement claims (Count I) and for first-party claims (Count II). (DE 144 at 2.) Count III alleges breach of contract for failure to pay benefits for contractual claims. (Id.)

2 Count IV alleges fraudulent concealment and Count V is a claim for declaratory relief “from which [Plaintiff] seeks an accounting and exchange of claims data.” (DE 144 at 3, 9.) 151).° Accordingly, upon a careful review of the Report, the Motion, the record, and applicable law, it is ORDERED AND ADJUDGED as follows: 1. U.S. Magistrate Judge Lisette M Reid’s Report and Recommendation (DE 144) is AFFIRMED AND ADOPTED. 2. Defendant's Motion to Dismiss the Second Amended Complaint (DE 130) is GRANTED IN PART AND DENIED IN PART. 3. Counts IV and V of Plaintiff's Second Amended Complaint (DE 127) are DISMISSED. 4. Pursuant to Rule 12(a) of the Federal Rules of Civil Procedure, Defendant shall file its responsive pleading to all remaining counts of the Second Amended Complaint (DE 127) WITHIN FOURTEEN (14) DAYS of the date of this Order. DONE AND ORDERED in Chambers in Miami, Florida on this 30th day of January, 2025.

KATHLEEN M., WILLIAMS UNITED STATES DISTRICT JUDGE

3 The Court notes that Plaintiff's objection merely rehashes arguments, in some instances verbatim, that were presented to Judge Reid. As such, the objection simply disagrees with the Report’s conclusion. However, it is well settled that an objecting party may not “submit [] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to a [Report].” Marlite, Inc. v. Eckenrod, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)).