Opinion
CASE NO: 8:10-cv-338-T-33TGW
12-21-2011
ARTHUR BRAKE and DEANNA BRAKE, Plaintiffs, v. WELLS FARGO FINANCIAL SYSTEM FLORIDA, INC., Defendant.
ORDER
This cause comes before the Court pursuant to Defendant's Motion to Dismiss Plaintiffs' Amended Complaint (Docs. # 44). Magistrate Judge Thomas G. Wilson has filed his report (Doc. # 59) recommending that Plaintiffs' amended complaint be dismissed in its entirety, with leave for Plaintiffs to file a second amended complaint, in compliance with the Federal Rules of Civil Procedure, that asserts only a claim for a breach of a fiduciary duty based upon the use of high pressure sales tactics and that the other claims for relief stated in the amended complaint be dismissed with prejudice.
All parties were furnished copies of the Report and Recommendation and were afforded the opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1). As of this date, there are no objections to the Report and Recommendation, and the time for the parties to file such objections has elapsed.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1432 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994).
After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepts the factual findings and legal conclusions of the Magistrate Judge and adopts the recommendation of the Magistrate Judge regarding the motion.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) The Magistrate Judge's Report and Recommendation (Doc. # 59) is adopted and incorporated by reference in this Order of the Court.
(2) Defendant's Motion to Dismiss Plaintiffs' Amended Complaint (Docs. # 44) is GRANTED as set forth in the Report and Recommendation.
(3) Plaintiffs' amended complaint (Doc. # 43) is dismissed in its entirety, with leave for Plaintiffs to file a second amended complaint, in compliance with the Federal Rules of Civil Procedure, that asserts only a claim for a breach of a fiduciary duty based upon the use of high pressure sales tactics. The other five claims for relief stated in the amended complaint are dismissed with prejudice.
(4) Plaintiffs shall file their second amended complaint by January 5, 2012.
DONE and ORDERED in Chambers in Tampa, Florida, this 21st day of December, 2011.
_____________________________
VIRGINIA M. HERNANDEZ COVINGTON
UNITED STATES DISTRICT JUDGE
Copies: All Counsel of Record