Opinion
Case No: 3:13-cv-795-J-39MCR
07-23-2014
NCC BUSINESS SERVICES, INC., Plaintiff, v. LEMBERG & ASSOCIATES, LLC, Defendant.
ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Doc. 39), entered by the Honorable Monte C. Richardson, United States Magistrate Judge on June 6, 2014. In the report, Magistrate Judge Richardson recommends Defendant's Motion to Dismiss (Doc. 28) be granted to the extent that Plaintiff's Third Amended Complaint (Doc. 9) be dismissed without prejudice. Magistrate Judge Richardson also recommended Plaintiff be granted leave to file a fourth amended complaint within twenty days. No objections to the Report and Recommendation were filed and the time to do so has passed. Accordingly, the matter is ripe for review.
Local Rule 6.02(a), United States District Court, Middle District of Florida, directs that any objections to a report and recommendation should be filed within fourteen days after service of the report and recommendation. See also 28 U.S.C. § 636(b)(1).
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). If no specific objections to findings of facts are filed, the district judge is not required to conduct a de novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see also 28 U.S.C. § 636(b)(1). However, the district judge must review legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994).
Upon independent review of the file and for the reasons stated in the Report and Recommendation, the Court agrees with the Magistrate Judge's thorough and well-reasoned analysis. Therefore, the Court will accept and adopt the factual and legal conclusions recommended by the Magistrate Judge. However, Plaintiff is advised that this will likely be its last opportunity to amend their complaint. In England v. Hillsborough Cmtv. Coll., 546 F. App'x 881 (11th Cir. 2013) the Eleventh Circuit found the district court's dismissal of a pro se plaintiff's complaint with prejudice proper where the district court had given the plaintiff two previous opportunities to amend the complaint, Id. at 885. Unlike the plaintiff in England, Plaintiff in this case is represented by counsel and thus, is not entitled to a liberal construction of its complaint or more a more gentle review of its pleadings. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). Therefore, the Court sees no reason to treat Plaintiff, represented by counsel, more leniently than a plaintiff without counsel.
Accordingly, after due consideration, it is
ORDERED:
1. The Report and Recommendation (Doc. 39) filed on June 6, 2014 is ADOPTED as the Opinion of this Court.
2. Defendant's Motion to Dismiss (Doc. 28) is GRANTED to the extent Plaintiff's Third Amended Complaint (Doc. 9) is dismissed without prejudice.
3. If Plaintiff believes it can state a viable cause of action, Plaintiff's fourth amended complaint shall be filed no later than August 14, 2014.
DONE and ORDERED in Jacksonville, Florida this 23th day of July, 2014.
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BRIAN J. DAVIS
United States District Judge
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Copies furnished to:
The Honorable Monte C. Richardson
United States Magistrate Judge
Counsel of Record