Zamora v. AAP Implants, Inc

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 24-cv-21625-BLOOM/Elfenbein

MARLEN ZAMORA,

Plaintiff,

v.

AAP IMPLANTS, INC.,

Defendant. _________________________/

ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE is before the Court upon Defendant AAP Implants, Incorporated’s Motion to Dismiss the Second Amended Complaint (“Motion”). ECF No. [47]. The Court referred the Motion to Magistrate Judge Marty Fulgueira Elfenbein for a Report and Recommendation (“R&R”) on August 20, 2024. ECF No. [51]. On November 20, 2024, Judge Elfenbein issued a R&R recommending that Defendant’s Motion be granted in part and denied in part. ECF No. [54] at 15. Specifically, Judge Elfenbein recommends: (1) Counts I and VI of the Second Amended Complaint be dismissed without prejudice; (2) Count VII be dismissed with prejudice; and (3) Defendant’s request to dismiss Count III be denied. Id. at 16. The R&R advised the parties that they “have fourteen (14) days from the date of being served with a copy of th[e] Report and Recommendation within which to file written objections[.]” Id. To date, neither party has filed objections nor has either party sought an extension of time to file objections. “If a party fails to object to any portion of the magistrate judge’s report, those portions are reviewed for clear error.” Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (quoting Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The portions of the report and recommendation to which an objection is made are reviewed de novo only 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); Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009) (citing 28 U.S.C. §

636(b)(1)). Nevertheless, the Court has conducted a de novo review of the record and is fully advised. Upon review, the Court finds the R&R to be well reasoned and correct. The Court therefore agrees with the analysis in the R&R and concludes that Defendant’s Motion to Dismiss, ECF No. [47], is granted in part and denied in part for the reasons stated therein. Accordingly, it is ORDERED AND ADJUDGED as follows: 1. The Report and Recommendation, ECF No. [54], is ADOPTED. 2. Defendant’s Motion to Dismiss, ECF No. [47], is GRANTED IN PART and DENIED IN PART. 3. Counts I and VI of the Second Amended Complaint are DISMISSED WITHOUT PREJUDICE. Plaintiff shall file a Third Amended Complaint by

December 19, 2024 that cures the deficiencies in Counts I and VI of the Second Amended Complaint should Plaintiff proceed with those claims. 4. Count VII of Plaintiff’s Second Amended Complaint is DISMISSED WITH PREJUDICE. 5. Defendant’s Motion to Dismiss is DENIED to the extent Defendant seeks to dismiss Count III of Plaintiff’s Second Amended Complaint. Case No. 24-cv-21625-BLOOM/Elfenbein

DONE AND ORDERED in Chambers at Miami, Florida, on December 6, 2024.

BETH BLOOM UNITED STATES DISTRICT JUDGE Copies to: Counsel of record