Esposito v. Hollander et al, No. 2:2009cv00728 - Document 49 (M.D. Fla. 2010)
Court Description: OPINION AND ORDER adopting 44 Report and Recommendations; denying 41 motion to amend the second amended complaint; denying 45 motion to amend second amended complaint; adopting 48 Report and Recommendations. Plaintiff may file a response to the 39 Motion to dismiss within 7 days. If no response is filed, the motion may be granted and the second amended complaint dismissed without prejudice. Signed by Judge John E. Steele on 7/7/2010. (RKR)
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Esposito v. Hollander et al Doc. 49 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION RALPH H. ESPOSITO, JR., Plaintiff, vs. Case No. RICHARD HOLLANDER; RUTH SAMELSON, EDWARD 2:09-cv-728-FtM-29SPC MILLER; ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge s April 30, 2010 Report and Recommendation (Doc. #44) recommending that plaintiff s motion to amend second amended complaint (Doc. #41) be denied. On May 24, 2010, the Court took the Report and Recommendation under advisement because plaintiff filed a second motion to amend the second amended complaint. On June 4, 2010, the Magistrate Judge issued a second Report and Recommendation (Doc. #48) recommending that the second motion to amend the second amended complaint (Doc. #45) be denied. No objections have been filed and the time to do so has expired. 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). In the absence of specific objections, there is no requirement that a district judge review Dockets.Justia.com factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 636(b)(1)(C). 28 U.S.C. § The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff d, 28 F.3d 116 (11th Cir. 1994) (Table). After conducting an independent examination of the file and upon due consideration of the Report and Recommendation, the Court accepts the Report and Recommendation of the magistrate judge. The requests to amend the second amended complaint will be denied. The Court notes that defendants Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 8, 9, 10 and 12(b)(6) (Doc. #39) remains pending and plaintiff has not filed a response. The motion seeks dismissal of the second amended complaint for failure to comply with the Federal Rules and for failure to state a claim. The plaintiff in a legal malpractice action must prove: (1) the employment of the attorney; (2) the lawyer s neglect of a reasonable duty; and (3) that the attorney s negligence was the proximate cause of loss to the client. Lenahan v. Russell L. Forkey, P.A., 702 So. 2d 610, 611 (Fla. 4th DCA 1997). The facts alleged and construed liberally due to plaintiff s pro se status are that plaintiff did not receive a discharge in bankruptcy, due -2- to the malpractice of the Miller and Hollander Law Firm, and that another individual suffered errors identified in her case, malpractice in her case. her bankruptcy case. as Jenifer may Kranites, testify as to who the also firm s Plaintiff pleads that the Court review Ms. Kranites is not a party in this case. Plaintiff seeks damages based on these facts and sanctions against the firm. The Court is inclined to grant the motion to dismiss as the Second Amended Complaint fails to state a plausible cause of action under Federal Rule of Civil Procedure 8. clearly identify the basic elements of Plaintiff does not the case, i.e., that plaintiff hired Miller and Hollander, that Miller and Hollander had a duty as plaintiff s negligence on unfavorable malpractice. the result attorney, part does of not the or what firm. establish actions Simply constituted receiving negligence or an legal Additionally, although individuals are named as defendants, no specific actions are attributed to each of the defendants separately such that defendants would have notice of the allegations in the second amended complaint. proposed amendments would have corrected Neither of the these deficiencies, and any further amendments would be futile. pleading Finding no response filed, the Court will provide one opportunity to file a response before considering whether to dismiss the second amended complaint. -3- Accordingly, it is now ORDERED: 1. The April 30, 2010 Report and Recommendation (Doc. #44) and June 4, 2010 Report and Recommendation (Doc. #48) are ADOPTED. 2. Plaintiff s motion to amend the second amended complaint (Doc. #41) and second motion to amend the second amended complaint (Doc. #45) are DENIED. 3. Plaintiff may file a response to the Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 8, 9, 10 and 12(b)(6) (Doc. #39) within SEVEN (7) DAYS of this Opinion and Order. If no response is filed, the motion may be granted for failure to state a claim and the second amended complaint dismissed without prejudice without further notice. DONE AND ORDERED at Fort Myers, Florida, this July, 2010. Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Counsel of Record Unrepresented parties -4- 7th day of
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