Stuart v. Shullman ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 0:20-cv-61314-GAYLES/STRAUSS KEITH LORING STUART, LYNN ANTONUCCI STUART, FELICIA JOSEPHINA MALLIA, TERRY LYNN EDWARDS, NATIONWIDE POOLS, INC., NATIONWIDE POOLS OF DADE, INC., NATIONWIDE POOLS OF W. PALM BCH., INC., and THE KINGS HIGHWAY GENERAL CONTRACTING, INC., also known as NATIONAL CONSTRUCTION GROUP, INC., Plaintiffs, v. SARAH SHULLMAN, RONALD HONICK, MARK BRIESEMEISTER, and THE OFFICE OF THE FLORIDA ATTORNEY GENERAL, Defendants. _________________________________________/ ORDER THIS CAUSE comes before the Court on Magistrate Judge Jared M Strauss’s Report and Recommendation (the “Report”), [ECF No. 41], on Defendants Sarah Shullman, Ronald Honick, Mark Briesemeister, and the Office of the Florida Attorney General’s (collectively, “Defendants”) Motion to Strike and Motion to Dismiss the Second Amended Complaint (the “Motion to Dismiss”), [ECF No. 5], and Plaintiffs Keith Loring Stuart, Lynn Antonucci Stuart, Felicia Josephina Mallia, Terry Lynn Edwards, Nationwide Pools, Inc., Nationwide Pools of Dade, Inc., Nationwide Pools of W. Palm Bch., Inc., and the Kings Highway General Contracting, Inc.’s (collectively, “Plaintiffs”) Motion to Remand, [ECF No. 10]. This matter was referred to Magistrate Judge Strauss pursuant to 28 U.S.C. § 636(b)(1)(B) for a ruling on all pre-trial, non-dispositive matters and a report and recommendation on all dispositive matters. [ECF No. 29]. On July 8, 2020, Defendants filed their Motion to Dismiss and on July 29, 2020, Plaintiffs filed their Motion to Remand. On November 16, 2020, Magistrate Judge Strauss heard oral arguments on the Motion to Remand. [ECF No. 37]. On November 18, 2020, Judge Strauss issued his Report recommending that Plaintiffs’ Motion to Remand be granted, that this action be remanded to the Seventeenth Judicial Circuit in and for Broward County, Florida, and that Defendants’ Motion to Dismiss be denied as moot. [ECF No. 41 at 1]. Judge Strauss’s Report recommends that this action be remanded for lack of subject matter jurisdiction because the Second Amended Complaint is a legal nullity and thus not the operative complaint at the time of removal. Id. at 3. Neither party timely filed objections. 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). Having reviewed the Report, the Court finds no clear error and agrees with Judge Strauss’s well-reasoned analysis and conclusion that: (1) Plaintiffs’ Motion to Remand should be granted; (2) this action should be remanded to the Seventeenth Judicial Circuit in and for Broward County, Florida; and (3) Defendants’ Motion to Dismiss should be denied as moot. Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Magistrate Judge Jared M. Strauss’s Report and Recommendation, [ECF No. 41], is AFFIRMED AND ADOPTED and incorporated into this Order by reference; 2. Plaintiffs Keith Loring Stuart, Lynn Antonucci Stuart, Felicia Josephina Mallia, Terry Lynn Edwards, Nationwide Pools, Inc., Nationwide Pools of Dade, Inc., Nationwide Pools of W. Palm Bch., Inc., and the Kings Highway General Contracting, Inc.’s Motion to Remand, [ECF No. 10], is GRANTED; 3. This action shall be REMANDED to the Seventeenth Judicial Circuit in and for Broward County, Florida; 4. Defendants Sarah Shullman, Ronald Honick, Mark Briesemeister, and the Office of the Florida Attorney General’s Motion to Strike and Motion to Dismiss the Second Amended Complaint, [ECF No. 5], is DENIED as moot; and 5. This case is CLOSED. DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of December, 2020. af Bld UNITED STATES DISTR JUDGE