Feng v. Walsh ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 1:19-cv-24138-GAYLES/OTAZO-REYES YUANXIAO FENG, et al., Plaintiffs, v. JOSEPH WALSH, et al., Defendants. / ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE THIS CAUSE comes before the Court on Magistrate Judge Alicia M. Otazo-Reyes’s Report and Recommendation (“Report”) [ECF No. 112]. On December 10, 2019, Defendants PNC Bank, N.A. (“PNC Bank”) and Ruben Ramirez (“Ramirez”) (together, “PNC Defendants”) filed their Motion to Dismiss the Amended Complaint for failure to state a claim. [ECF No. 51]. On January 2, 2020, Defendants Greystone Hotel Miami, LLC, United EB5 LLC, Santa Barbara 230, LLC, Greystone Terra Firma, LLC, Vos Holdings I, LLC, VOS CREI, LLC, Greystone Hospitality, LLC, Greystone Holdco, LLC, Greystone Managing Member, LLC, Greystone Master Tenant, LLC, Greystone Tenant, LLC, Greystone Option Holder, LLC, Trans Inn, Associates, LLC, VOS Hospitality LLC, BBM 3, LLC, BBM 3 II, LLC, James Vosotas, Daniel Vosotas and Branden Muhl (the “Greystone Defendants”) filed a separate Motion to Dismiss the Amended Complaint. [ECF No. 68]. The case was referred to Magistrate Judge Otazo-Reyes, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pretrial non-dispositive and dispositive matters. [ECF No. 106]. On June 17, 2020, Judge Otazo-Reyes held a hearing on both Motions. [ECF No. 110]. On September 14, 2020, Judge Otazo-Reyes issued her Report, recommending that the Court grant in part both the PNC Defendants’ Motion to Dismiss and Greystone Defendants’ Motion to Dismiss. Specifically, the Report recommends that the Court dismiss with prejudice Counts 26 and 41 of the Amended Complaint and dismiss without prejudice, with leave to replead, the remaining counts against the Defendants. No party timely filed objections to the Report. 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 objection is 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 objection is 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). The Court finds no clear error with Judge Otazo-Reyes’s well-reasoned analysis and agrees that the PNC Defendants’ Motion to Dismiss and Greystone Defendants’ Motion to Dismiss should be granted in part. Accordingly, it is ORDERED AND ADJUDGED as follows: (1) Judge Otazo-Reyes’s Report and Recommendation [ECF No. 112] is AFFIRMED AND ADOPTED and incorporated into this Order by reference; (2) Counts 26 and 41 in the Amended Complaint are DISMISSED with prejudice; (3) All remaining counts against the PNC Defendants and the Greystone Defendants in the Amended Complaint are DISMISSED without prejudice with leave to replead. If they so choose, Plaintiffs shall file a second Amended Complaint on or before October 19, 2020. DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of September, 2020. - DARRIN P. GAYLES UNITED STATES DI CT JUDGE