Marolax Handels-Und Verwaltungsgesellschaft MBH v. 898 5th Avenue South Corp., No. 2:2006cv00691 - Document 146 (M.D. Fla. 2009)
Court Description: OPINION AND ORDER rejecting 99 Order, deemed a Report and Recommendation, and the 78 Motion for an appointment of Receiver is denied. Signed by Judge John E. Steele on 6/15/2009. (RKM)
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION M A R O L A X H A N D E L S - U N D VERWALTUNGSGESELLSCHAFT MBH, Plaintiff, vs. Case No. 2:06-cv-691-FtM-29SPC 898 5TH AVENUE SOUTH CORP., Defendant. SUSANNE SCHACHE, PROVIDENT HOLDING, LLC, and PROVIDENT NAPLES, LLC Impleaded Defendants ___________________________________ OPINION AND ORDER This matter is before the Court on plaintiff s Motion for an Appointment of a Receiver (Doc. #78), to which a Memorandum in Opposition (Doc. #81) was filed. The Magistrate Judge filed an Order (Doc. #99) on December 17, 2008, granting the motion in part. On January 20, 2009, the undersigned sustained defendant s Objection (Doc. #103) to the magistrate judge s Order, deemed the Order to be a Report and Recommendation, and directed that any objections be filed within ten days. On January 30, 2009, defendants filed Objections (Doc. #115), and on February 6, 2009, plaintiff filed a Response to Defendants Objections (Doc. #116). I. 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. 636(b)(1); 28 U.S.C. § Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge shall make a portions de novo determination of those of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). This requires that the district judge give fresh consideration to those issues to which specific objection has been made by a party. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong. § 2 (1976)). The district judge reviews conclusions de novo, even in the absence of an objection. legal See Cooper-Houston v. Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994). II. Plaintiff received a judgment in Germany against defendant for approximately $6.5 million. The background has been summarized by the Court in the Opinion and Order (Doc. #51, pp. 2-7) filed on April 16, 2008, which will be adopted but not repeated here. The Court recognized the German judgment, allowed it to be recorded, and directed enforcement in the same manner as the judgement of a court of the State of Florida. (Doc. #51, p. 11.) Plaintiff s Motion for Appointment of Receiver requested the appointment of a receiver to marshal the assets of the Judgment Debtor and prevent further dissipation of the sole asset. (Doc. #78, p. 4.) corporate In the Order, the magistrate judge -2- granted the motion in part, stating that the Court will appoint the receiver to receive the rental income only and not to take total control of the property. (Doc. #99, p. 5.) After this Order was converted to a Report and Recommendation, defendant filed the objections (Doc. #115) presently before the Court. III. Appointment of a receiver in federal court is a matter of federal law. FED . R. CIV . P. 66; National P ship Inv. Corp. v. National Hous. Dev. Corp., 153 F.3d 1289, 1291 (11th Cir. 1998). In this case plaintiff seeks appointment of a receiver in order to assist in the collection of recognized by this Court. the judgment that has now been When a receiver is sought for the purpose of collection on a judgment, an evidentiary hearing is not required when the files and records of the case, together with the pleadings, briefs, and uncontroverted assertions of the parties show that the appointment is warranted. Citronelle-Mobile Gathering, Inc. v. Watkins, 934 F.2d 1180, 1189 (11th Cir. 1991). Appointment of a receiver is warranted when such an appointment is necessary Watkins, 934 F.2d at 1187, after considering and weighing the potential harm to the parties, id. at 1188-89. The stricter pre-judgment standards for the appointment of a receiver are not applicable. Watkins, 934 F.2d at 1188-89. Warshall 617 v. Price, So. 2d 751 (Fla. 4th See also DCA 1993). Nonetheless, the Court considers the appointment of a receiver to be a drastic and extraordinary remedy. -3- Watkins, 934 F.2d at 1188. After a de novo review of the record, the Court is not convinced that plaintiff has satisfied the standard for appointment of a receiver. Defendant has a single asset. A limited receivership such as approved by the magistrate judge would be detrimental if the receiver took the rents and the corporation was unable to maintain the property, the only asset. While there are facts which rightly caused concern to the magistrate judge, the Court does not find the evidence convincing enough to show an intentional depletion of the single asset or other fraudulent conduct by defendant to avoid paying the judgment. Plaintiff has other available remedies, including garnishment and foreclosure on the property. examination of Therefore, the record, after the conducting Court rejects an independent the Report and Recommendation and will deny plaintiff s Motion for an Appointment of a Receiver. Accordingly, it is now ORDERED: The Order (Doc. #99), deemed a Report and Recommendation, is hereby rejected for the reasons stated herein. Plaintiff s Motion for an Appointment of a Receiver (Doc. #78) is DENIED. DONE AND ORDERED at Fort Myers, Florida, this June, 2009. -4- 15th day of Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Counsel of Record Unrepresented parties -5-
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