Newman v. Sun Capital, Inc. et al, No. 2:2009cv00445 - Document 148 (M.D. Fla. 2010)

Court Description: OPINION AND ORDER denying 30 Motion to intervene; adopting 103 Report and Recommendations; and overruling objections. The Clerk shall terminate the movants on the docket. Signed by Judge John E. Steele on 1/21/2010. (RKR)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DANIEL S. NEWMAN, as a Receiver for Founding Partners Capital Management Company; Founding Partners StableValue Fund, L.P.; Founding Partners Stable-Value Fund, II, L.P.; Founding Partners Global Fund, Ltd. and Founding Partners Hybrid-Value Fund, L.P., Plaintiff, vs. Case No. 2:09-cv-445-FtM-29SPC SUN CAPITAL, INC. a Florida corporation; SUN CAPITAL HEALTHCARE, INC. a Florida corporation; HLP PROPERTIES OF PORT ARTHUR, LLC a Texas limited liability company, Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge s Report and Recommendation (Doc. #103), filed December 11, 2009, recommending that Investor Intervenors Annandale Partners LP, Annandale Partners II, LP, Barbara K. Baldwin, Belmont Strategic Income Fund, LP, Edward D. Fallin, Jr., Theodore S. Fries, Donald L. Hampton, Kenny Allan Troutt, as Trustee, on behalf of the Kenny Allan Troutt Descendants Trust, and The Rock of Gainseville, Inc. s Motion to Intervene and Brief in Support (Doc. #30) be denied. The investors intervenors filed Objections (Doc. #106) on December 24, 2009, and plaintiff filed a Response to Objections (Doc. #112) on January 7, 2010. The parties dispute the standard under which a district judge must review the Report and Recommendation. Plaintiff asserts that review is under an erroneous or contrary to law standard, while the putative intervenors assert that the district court conducts a de novo review. The magistrate judge obviously felt the latter was the appropriate standard, since she resolved the motion by report and recommendation instead of by order. The Court agrees, and finds that a motion to intervene is a dispositive motion which must ultimately be decided by an Article III judge in the absence of consent. E.g., Stackhouse v. McKnight, 168 Fed. Appx. 464, 467 (2d Cir. 2006). Since there was no consent in this case, the Court will review the matter under a de novo standard. 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). This requires that the district judge give fresh consideration to those issues to which specific objection has been made by a party. -2- Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong. § 2 (1976)). After conducting an independent examination of the file and upon due consideration of the Report and Recommendation and objections thereto, the Court accepts and adopts the Report and Recommendation of the magistrate judge and overrules the objections. The Court finds that the proposed intervenors have not established they have a right to intervene under FED . R. CIV . P. 24(a) or that they should be granted permissive intervention pursuant to FED . R. CIV . P. 24(b). The Court also finds no error in the magistrate judge s denial of intervenors request to file a reply memorandum. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #103) is hereby adopted and the Objections are overruled. 2. Investor Intervenors Annandale Partners LP, Annandale Partners II, LP, Barbara K. Baldwin, Belmont Strategic Income Fund, LP, Edward D. Fallin, Jr., Theodore S. Fries, Donald L. Hampton, Kenny Allan Troutt, as Trustee, on behalf of the Kenny Allan Troutt Descendants Trust, and The Rock of Gainseville, Inc. s Motion to Intervene and Brief in Support (Doc. #30) is DENIED. -3- 3. The Clerk shall terminate the movants on the docket. DONE AND ORDERED at Fort Myers, Florida, this January, 2010. Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Counsel of Record Unrepresented parties -4- 21st day of

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