Document 95
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The defendants object to part of the magistrate's report and recommendation in a civil case. They agree with the recommendation to grant the defendants' motion to dismiss. However, they disagree with allowing the plaintiff to amend the complaint. The defendants request that the court refer additional pending motions, like motions for summary judgment, to the magistrate for consideration along with the report to support dismissing the case in favor of the defendants after discovery has closed.
Document 95
- 1. Case 1:11-cv-20120-PAS Document 95 Entered on FLSD Docket 02/20/2012 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 11-20120-CIV-SEITZ/SIMONTON TRAIAN BUJDUVEANU, Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT, DEREK THOMAS and ADAMS LESHOTA Defendants. _________________________________________/ DEFENDANTS’ OBJECTION TO MAGISTRATE’S REPORT AND RECOMMENDATION ENTERED FEBRUARY 7, 2012 On February 7, 2012, the Honorable Andrea M. Simonton, U.S. Magistrate Judge, issued a Report and Recommendation pursuant to this Court’s Order of Referral dated June 20, 2010, (DE #43) to determine whether dismissal of this matter was appropriate based upon the Defendants’ Motion to Dismiss (DE #33), the corresponding memoranda in opposition (DE #38 and #41), and in reply (DE #39). The Report is clearly a significant undertaking by the Magistrate which comprehensively outlines plaintiff’s broad pro se claims in a understandable format, while also providing a detailed analysis of fact and law. Defendants agree with the Report’s final recommendation on page 66 granting Defendants’ motion to dismiss. However, on page 17 of the Report, because the motion to dismiss was an initial responsive pleading, the Magistrate recommended that 869403:1:LOUISVILLE
- 2. Case 1:11-cv-20120-PAS Document 95 Entered on FLSD Docket 02/20/2012 Page 2 of 5 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Plaintiff should be granted leave to amend his complaint and reiterates this statement on page 64 concerning an analysis of an unstated claim for conversion. 1 Defendants respectfully request that this Court does not adopt the Report and Recommendation and instead issue an order referring pending motions for summary judgment and a motion to strike the amended complaint to the Magistrate for decision and incorporation within the Report. The pending motions supplement facts and provide legal analysis that follows the work already done by the Magistrate and support that after discovery has closed a final judgment in favor of Defendants is appropriate. On May 20, 2011, contemporaneously with the initial filing of the Defendants Motion to Dismiss, the parties also filed a Joint Scheduling Report (DE #31) setting dates for amendment of pleadings (August 5, 2011), completion of discovery (December 16, 2011), and filing dispositive motions (December 16, 2011). Pursuant to the Joint Scheduling Report, the parties engaged in discovery and filed motions for summary judgment. Plaintiff’s motion for summary judgment spanned several entries beginning on November 22, 2011. 2 The substance of Plaintiff’s motion for summary judgment is found within docket entries 72, 73, 75, and 84. The corresponding response filed by Defendants is found within docket entries 87 and 88. 1 Defendants reserve further objection because they are requesting that this Court refer additional motions to the Magistrate for consideration and incorporation into the Report. 2 Orders were entered by this Court striking a notice for hearing and two statements of fact. See Court Orders DE 71, #76, and #82. 869403:1:LOUISVILLE 2
- 3. Case 1:11-cv-20120-PAS Document 95 Entered on FLSD Docket 02/20/2012 Page 3 of 5 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Defendants’ motion for summary judgment was filed on December 16, 2011, (DE # 83), responded to by Plaintiff (DE # 90 and #92), and fully briefed by the filing of Defendants’ reply on January 12, 2012, (DE #91). 3 In addition to these dispositive motions, a discovery dispute arose because Plaintiff failed to appear at two scheduled depositions, resulting in Defendants’ motion to strike the amended complaint. (DE #78 and #79). This motion is also fully brief by the filing of Plaintiff’s response (DE # 86) and Defendants’ reply (DE #89). Given that discovery is now closed, summary judgments have been filed, and Plaintiff did not amend his pleadings (while also avoiding deposition), the analysis provided by the Magistrate should equally apply to Defendants’ motion for summary judgment with the important exception that further recommendation can be issued by the Magistrate with finality. For these reasons, Defendants respectfully object to the Report and request that the pending motions for summary judgment and motion to strike be referred to the Magistrate. EISINGER, BROWN, LEWIS, FRANKEL, & CHAIET, P.A. Attorneys for Defendants 4000 Hollywood Boulevard Suite 265-South Hollywood, FL 33021 (954) 894-8000 (954) 894-8015 Fax BY: /S/ David S. Chaiet____________ DAVID S. CHAIET, ESQUIRE FBN: 963798 3 Plaintiff filed a reply too (DE #92), which Defendants have moved the court to strike (DE # 93). 869403:1:LOUISVILLE 3
- 4. Case 1:11-cv-20120-PAS Document 95 Entered on FLSD Docket 02/20/2012 Page 4 of 5 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 20th day of February, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are authorized to receive electronically Notices of Electronic Filing. __/s/ David S. Chaiet_______________ DAVID S. CHAIET, ESQUIRE Florida Bar No. 963798 869403:1:LOUISVILLE 4
- 5. Case 1:11-cv-20120-PAS Document 95 Entered on FLSD Docket 02/20/2012 Page 5 of 5 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON SERVICE LIST Traian Bujduveanu v. Dismas Charities, Inc., et al. Case No..: 11-20120-CIV-SEITZ/SIMONTON United States District Court, Southern District of Florida Traian Bujduveanu Pro Se Plaintiff 5601 W. Broward Blvd. Plantation, FL 33317 Tel: (954) 316-3828 Email: orionav@msn.com 869403:1:LOUISVILLE 5