Opinion
CASE NO. 8:09CIV-2348-T-17-EAJ.
December 22, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the report and recommendation (R R) issued by Magistrate Judge Elizabeth A. Jenkins on November 5, 2010 (Docket No. 35). The magistrate judge recommended that the Court grant the defendant's motion to dismiss or for summary judgment (Docket No. 21) and deny the plaintiff's motion to change nature of suit (Docket No. 29)
Pursuant to Rule 6.02, Rules of the United States District Court for the Middle District of Florida, the parties had fourteen (14) days after service to file written objections to the proposed findings and recommendations, or be barred from attacking the factual findings on appeal. Nettles v. Wainwright , 677 F.2d 404 (5th Cir. 1982) (en banc). Timely objections to the report and recommendation were filed, along with a motion titled "motion for reconsideration" (Docket No. 40), which asks for a hearing in front of the district judge.
STANDARD OF REVIEW
When a party makes a timely and specific objection to a finding of fact in the report and recommendation, the district court should make a de novo review of the record with respect to that factual issue. 28 U.S.C. § 636(b)(1); U.S. v. Raddatz , 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia , 896 f.2d 507 (11th Cir. 1990). However, when no timely and specific objections are filed, case law indicates that the court should review the findings using a clearly erroneous standard. Gropp v. United Airlines, Inc. , 817 F.Supp. 1558, 1562 (M.D. Fla. 1993).
The Court has reviewed the report and recommendation and made an independent review of the record. Upon due consideration, the Court concurs with the report and recommendation. Accordingly, it is
ORDERED that the report and recommendation, November 5, 2010 (Docket No. 35) be adopted and incorporated by reference; the defendant's motion to dismiss or for summary judgment (Docket No. 21) is granted; the objections (Docket No. 26) be overruled; the plaintiff's motion to change nature of suit (Docket No. 29) and motion for reconsideration be denied; and judgment be entered for the defendant. The Clerk of Court is directed to close this case and terminate any other pending motions. DONE and ORDERED in Chambers, in Tampa, Florida, this 22nd day of December, 2010.