Power v. ChromaDex, Inc.

Full title: LYNDA POWER, Plaintiff, v. CHROMADEX, INC., Defendant.

Court: United States District Court, Middle District of Florida

Date published: Sep 20, 2022

6:22-cv-747-RBD-LHP (M.D. Fla. Sep. 20, 2022)

Opinion

6:22-cv-747-RBD-LHP

09-20-2022

LYNDA POWER, Plaintiff, v. CHROMADEX, INC., Defendant.

Roy B. Dalton JR. United States District Judge

ORDER

Roy B. Dalton JR. United States District Judge

Plaintiff filed a pro se Second Amended Complaint (Doc. 15 (“Complaint”)) and moved to proceed in forma pauperis. (Doc. 2 (“Motion”).) On referral, U.S. Magistrate Judge Leslie Hoffman Price entered a Report and Recommendation that the Court deny the Motion and dismiss the Complaint with prejudice for lack of jurisdiction and without leave to amend, as Plaintiff has had multiple opportunities to replead. (Doc. 16 (“R&R”).) The parties did not timely object¹ and the deadline has passed, so the Court examines the R&R for clear error only. See Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006). The district judge “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 Plaintiff objected to the R&R on August 22, 2022-past the fourteen-day deadline. (See Doc. 17); 28 U.S.C. § 636(b)(1). As Plaintiff provided no reason for her belated objection, the Court does not consider her arguments.

Judge Hoffman Price recommends that the Complaint be dismissed with prejudice for failure to establish subject matter jurisdiction. (See Doc. 16, pp. 8-10, 14.) The Court agrees the Complaint should be dismissed but “dismissal for lack of subject matter jurisdiction . . . is entered without prejudice.” Stalley v. Orlando Reg'l Healthcare Sys., 524 F.3d 1229, 1232 (11th Cir. 2008). So the Complaint is due to be dismissed without prejudice. The Court adopts the rest of Judge Hoffman Price's recommendations.

Accordingly, it is ORDERED AND ADJUDGED:

1. The R&R (Doc. 16) is ADOPTED IN PART AND REJECTED IN PART:

a. The portion of the R&R in which Judge Hoffman Price recommends the Complaint be dismissed with prejudice is REJECTED.

b. The R&R is otherwise ADOPTED.

2. Plaintiff's Motion (Doc. 2) is DENIED.

3. This case is DISMISSED WITHOUT PREJUDICE and without leave to amend.

4. The Clerk is DIRECTED to close the file.

DONE AND ORDERED