Opinion
Case No. 4:18-cv-10276-KMM
05-03-2021
HARTFORD FIRE INSURANCE CO., Plaintiff, v. NEW YORK MART GROUP, INC., et al., Defendants.
ORDER ON REPORT AND RECOMMENDATION
THIS CAUSE came before the Court upon the Report and Recommendation on Request to Vacate Court Order, Motion to Reissue Stock, and Dismissal of Intervenor's Request issued by the Honorable Jacqueline Becerra, United States Magistrate Judge. ("R&R") (ECF No. 118). No objections were filed and the time to do so has passed. The matter is now ripe for review.
The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
On February 17, 2021, the Court entered an Order adopting an earlier R&R issued by Magistrate Judge Becerra ("Initial R&R") (ECF No. 101), and ordered Defendant iFresh, Inc. to "(1) cancel all of its stock certificates in NYM Holding, Inc.; (2) reissue the stock certificates in iFresh, Inc.'s name; and (3) deliver the reissued stock certificates to the Court for levy and execution." (ECF No. 102) at 3. Magistrate Judge Becerra's Initial R&R "relied on Defendant iFresh's representation that the stock certificates could not be located." R&R at 2. On February 19, 2021, Defendant iFresh, Inc. filed a Motion for Extension of Time and advised the Court that KeyBank National Association ("KeyBank"), who had a security interest in and possession of the stock certificates at issue, intended to intervene. (ECF No. 103). On February 22, 2021, KeyBank filed a Motion to Intervene and to Consolidate ("Motion to Intervene"). (ECF No. 107). Magistrate Judge Becerra held an expedited hearing and granted KeyBank's Motion to Intervene. (ECF No. 114). On March 22, 2021, KeyBank filed a Reply in Support of its Expedited Motion for Rehearing and stated therein that, conditioned upon the Court vacating its Order (ECF No. 102), KeyBank would "file a Notice of Voluntary (Without Prejudice) Dismissal of its Intervenor Complaint against [Plaintiff]." (ECF No. 117) at 2.
Now, Magistrate Judge Becerra recommends that the Court vacate its Order (ECF No. 102). See generally R&R. Specifically, Magistrate Judge Becerra finds that "[t]he stocks at issue have been located; they are not lost," which "is significant because the jurisdiction of the Court to enter such an order, as discussed in [the Initial R&R], was predicated on the fact that the certificates were lost." Id. at 4. Magistrate Judge Becerra finds that "under Florida law a court must have in rem jurisdiction over the property at issue" and because the stocks are no longer lost but are in Ohio, they are not subject to the Court's jurisdiction. Id. Magistrate Judge Becerra further recommends that Judgement Creditor's ("Plaintiff Hartford") Motion to Reissue Stock Certificates of NYM Holding, Inc. and Deliver Same for Levy be denied as moot and KeyBank's Intervenor Complaint against Plaintiff Harford be dismissed without prejudice. Id. at 5. This Court agrees.
Accordingly, UPON CONSIDERATION of the R&R, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Magistrate Judge Becerra's R&R (ECF No. 118) is ADOPTED. It is FURTHER ORDERED that this Court's Order (ECF No. 102) is VACATED; Plaintiff Hartford's Motion to Reissue Stock Certificates of NYM Holding, Inc. and Deliver Same for Levy (ECF No. 97) is DENIED AS MOOT; and KeyBank is DIRECTED to file a notice of dismissal as to its Intervenor Compliant (ECF No. 107-1) within twenty (20) days of the date of this Order.
DONE AND ORDERED in Chambers at Miami, Florida this 3rd day of May, 2021.
/s/_________
K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE c: All counsel of record