Jean-Bart v. DVA Renal Healthcare Inc.

Filing 25

ORDER adopting 22 REPORT AND RECOMMENDATION re 20 MOTION to amend/correct 1 Complaint filed by Margaret Jean-Bart, overruling Objections, and denying Motion to Amend. See order for details. Signed by Judge Elizabeth A. Kovachevich on 11/29/2012. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

MARGARET JEAN-BART,
Plaintiff,
v.

CASE NO. 2:12-CV-160-UA-DNF

DVA RENAL HEALTHCARE,

INC.,
Defendant.

ORDER

This cause is before the Court on:

Dkt. 22
Dkt. 23
Dkt. 24

Report and Recommendation
Objections to Report and Recommendation (Plaintiff)
Opposition to Objections (Defendant)

In the Report and Recommendation, the assigned Magistrate Judge
recommends that Plaintiff's Motion to Amend be denied, as Plaintiff did not establish

good cause for Plaintiff's delay in seeking leave to file an amended complaint, and the
information known to Plaintiff at the outset of the case should have allowed Plaintiff to

seek the additional relief that Plaintiff now requests. The assigned Magistrate Judge

further found that the proposed Amended Complaint was a "shotgun" pleading, and it
would be futile to permit amendment.

Plaintiff has filed Objections to the Report and Recommendation. Plaintiff
asserts that Plaintiff has good cause to file an Amended Complaint because the

proposed Amended Complaint is based on testimony of Defendant's representative
under a Rule 30(b)(6) deposition, taken on September 18, 2012. After the deposition,

Case No. 2:12-CV-160-FTM-UA-DNF

Plaintiff proposed amending the Complaint to add information to Counts I and II,

clarifying the allegations based upon testimony and documents. Plaintiffasserts that
Plaintiff will drop Count III, and requests that the Court grant Plaintiff leave to amend
the Complaint to clarify Counts I and II only.

Defendant opposes Plaintiff's Objections to the Report and Recommendation.
Defendant contends that Plaintiff has not objected to a specific finding in the Report
and Recommendation, and Plaintiff has not stated a specific basis for any of her

objections. Defendant argues that, because Plaintifffiled only general and conclusory

objections, the Court should review the Report and Recommendation for clear error,
and not de novo. Defendant argues it would be inappropriate for the Court to consider
Plaintiff's attempt to establish good cause which was not included in the motion
reviewed by the assigned Magistrate Judge, and the information which Plaintiff asserts
came to Plaintiff through a deposition was available to Plaintiff at the outset of the case.
To the extent that Plaintiff seeks additional relief in Plaintiff's Objections, Defendant

argues that the Court should deny the request, as the proper procedural vehicle is
another motion to amend.

I. Standard of Review

Federal Rule of Civil Procedure 72 provides the appropriate procedure for district
court review of a magistrate judge's report and recommendation. If a party wishes to

challenge the recommendation, the party must "serve and file specific written objections
to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2) (emphasis
added). As the Eleventh Circuit Court of Appeals has explained, the party's objections

must "specifically identify the portions of the proposed findings and recommendation to
which objection is made and the specific basis for objection." Macort v. Prem. Inc.. 208
Fed. Appx. 781, 783 (11th Cir. 2006). It is critical that the objection be sufficiently
specific and not a general objection to the report." \± at 784 (citing Gonev v. Clark. 749

Case No. 2:12-CV-160-FTM-UA-DNF

F.2d 5, 7 (3d Cir. 1984)). "The district judge must determine de novo any part of the

magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P.
72(b)(3). Regarding the scope of review, litigants generally must present their evidence
and arguments to the magistrate judge in the first instance to preserve review; however,
the district court may, in its discretion, consider arguments and evidence presented for
the first time in an objection to a report and recommendation. Williams v. McNeil. 557
F.3d 1287, 1291-92 (11th Cir. 2009). After concluding its review, "[t]he district judge

may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3);
accord Local Rule 6.02.

II. Discussion

Because Plaintiff does not object to a specific finding in the Report and

Recommendation, but only to the Report as a whole, the Court reviews Plaintiff's

Objections for clear error on the face of the record. Clear error review asks if, "after
viewing all the evidence, [the Court is] left with a definite and firm conviction that a
mistake has been committed. See HGI Assocs.. Inc. v. Wetmore Printing Co.. 427 F.3d

867, 873(11,h Cir. 2005).
At the outset, the Court notes that Plaintiff did not move to amend the Complaint
until after the deadline to amend pleadings in the Case Management and Scheduling

Order, July 9, 2012.

Therefore, the assigned Magistrate Judge properly evaluated

Plaintiff's Motion to Amend under the "good cause" standard. Since the proposed
Count III is based on the same facts as Counts I and II, Plaintiff already had the

necessary information at hand upon the filing of the Complaint. The assigned

Magistrate Judge did not err in concluding that Plaintiff did not establish good cause for
the delay in seeking leave to amend.

Case No. 2:12-CV-160-FTM-UA-DNF

The Court notes that, in Plaintiff's Objections, Plaintiff agrees to drop the

proposed Count III, and now seeks leave to amend the complaint to add clarifying
factual allegations to Counts I and II. Plaintiff did not include any reference to
information obtained in discovery in Plaintiffs Motion to Amend, and did not make any

argument to establish good cause until after the Report and Recommendation was
issued. The Court exercises its discretion to decline to consider Plaintiff's amended

request for leave to amend, which should be presented by motion, rather than in an

objection to the Report and Recommendation. The Court overrules Plaintiffs
Objections, will adopt the Report and Recommendation, and will deny the Motion to
Amend. Accordingly, it is

ORDERED that Plaintiffs Objections to the Report and Recommendation (Dkt.

23) are overruled; the Report and Recommendation (Dkt. 22) is adopted and
incorporated by reference. Plaintiffs Motion to Amend (Dkt. 20) is denied.
Defendant's request for the award of attorney's fees is denied (Dkt. 24). To the extent
that Plaintiff wants to pursue an amended motion for leave to amend, Plaintiffshall file
any such motion within fourteen days.
DONE and ORDERED in Chambers, in Tampa, Florida on this

i? 9 day of November, 2012.

"~El^ABEYH^i^&CH VI6>JE
United States DistricfJTrdg*

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All parties and counsel of record