Wright et al v. Dyck-O'Neal, Inc. et al
ORDER re 79 OBJECTION re 77 Order. Defendant Dyck-O'Neal, Inc.'s Objection to Magistrate's Order 79 is OVERRULED. The Court affirms the Honorable Mac R. McCoy's Order denying Defendants' motions to stay 77 . Signed by Judge Sheri Polster Chappell on 9/15/2016. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MOLLY WRIGHT, TRISHA BREMER,
SHAWN FISHER, KIMBERLY FISHER,
ANGELA MCDOUGALL, THOMAS
PATTERSON, MICHAEL PIASECKI,
CHRIS A. WIGLESWORTH and
DOROTHY WILLIS, on behalf of
themselves and all others similarly
Case No: 2:15-cv-249-FtM-38MRM
DYCK-O’NEAL, INC. and LAW
OFFICES OF DANIEL C.
This matter comes before the Court on Defendant Dyck-O’Neal, Inc.’s Objection
to the Magistrate’s Order (Doc. #79) filed on August 16, 2016. Six days later, Plaintiffs
filed their response (Doc. #80), making this matter ripe for review.
The facts of this consumer credit case are detailed at length in United States
Magistrate Judge Mac R. McCoy’s Order dated August 3, 2016. (Doc. #77). For brevity’s
sake, the Court recites only the procedural history relevant to Defendant Dyck-O’Neal’s
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objection. Defendant Dyck-O’Neal moved to stay this case until the Florida Second
District Court of Appeal issued a final ruling in Michael Aluia v. Dyck-O’Neal, Inc., Case
No. 2D15-2059. (Doc. #72). According to it, that state court case, once finalized, would
be fatal to Plaintiffs’ claims in this suit. In a well-reasoned order, Judge McCoy denied
the motion to stay, finding that the Aluia decision did not substantively address an issue
of Florida law that would bind this Court. (Doc. #77 at 4). Defendant Dyck-O’Neal has
objected to that decision. (Doc. #77).
“[A] judge may designate a magistrate judge to hear and determine any pretrial
matter before the court,” subject to exceptions not relevant to this case. 28 U.S.C.
§ 636(b)(1)(A). From there, Federal Rule of Civil Procedure 72 governs pretrial matters
referred to magistrate judges. Under Rule 72(a), a district court reviewing a magistrate
judge’s decision on a non-dispositive issue “must consider timely objections and modify
or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R.
Civ. P. 72(a). Clear error is a highly deferential standard of review. See Holton v. City of
Thomasville Sch. Dist., 425 F.3d 1325, 1351-52 (11th Cir. 2005). “A finding is clearly
erroneous ‘when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.’”
Id. Further, an order “is contrary to the law when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.” Malibu Media, LLC v. Doe, 923 F. Supp. 2d
1339, 1347 (M.D. Fla. 2013). Under neither standard does the Court find grounds to
modify or set aside Judge McCoy’s Order.
Defendant Dyck-O’Neal’s objections to Judge McCoy’s Order are twofold: (1) the
Aluia decision is binding on this Court; and (2) as a matter of law, a deficiency judgment
arising out of a foreclosure judgment is not a debt under federal and state consumerprotection laws. (Doc. #79). Neither objection is persuasive.
First, the Aluia decision is not binding on this Court because it concerns an
interpretation of a federal statute. Only if the case involves an interpretation of Florida
state law is this Court “bound by Florida Supreme Court precedent or, if that does not
exist, the ‘decisions of the state’s intermediate appellate courts absent some persuasive
indication that the state’s highest court would decide the issue otherwise.’” Stroud v.
Bank of Am., 886 F. Supp. 2d 1308, 1321-22 (S.D. Fla. 2012); see also Walker v.
Bozeman, 243 F. Supp. 2d 1298, 136 (N.D. Fla. 2003). Simply put, “[f]ederal courts are
the final arbiters of federal law[.]” Braddock v. Orlando Reg’l Health Care Sys., Inc., 881
F. Supp. 580 (M.D. Fla. 1995). Although a claim under the Florida Consumer Credit
Protection Act remains against Defendant Dyck-O’Neal, the Aluia decision does not
substantively address that statute. Accordingly, Aluia is not binding on this Court to
warrant a stay.
Contrary to Defendant Dyck-O’Neal’s second objection, federal courts have held
that a deficiency action constitutes a debt under the Fair Debt Collection Practices Act
(“FDCPA”). See Baggett v. Law Offices of Daniel C. Consuegra, P.L., No. 3:14-cv-1014J-32PDB, 2015 WL 1707479, at *5 (M.D. Fla. Apr. 15, 2015); see also Huthsing v. Law
Offices of Daniel C. Consuegra, P.L., No. 8:14-cv-2694-T-36JSS, 2015 WL 6777466, at
*3 (M.D. Fla. Oct. 27, 2015); Randerson v. Taylor Hayden, PLLC, No. 8:15-cv-615-T30TBM, 2015 WL 4429354, at *3 (M.D. Fla. July 20, 2015); Hernandez v. Dyck-O’Neal,
Inc., No. 3:14-cv-1124-J-32JBT, 2015 WL 2094263, at *3 (M.D. Fla. May 5, 2015).
Additionally, the Eleventh Circuit has held that payment obligations under a mortgage
note are a debt under the FDCPA. See Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211, 1216 (11th Cir. 2012). Based on this precedent, it is without question that
Judge McCoy’s Order (Doc. #77) is not contrary to law or clearly erroneous.
One last point to be made. “[T]he power to stay proceedings is incidental to the
power inherent in every court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co.,
299 U.S. 248, 254-55 (1936); see also Clinton v. Jones, 520 U.S. 681, 709 (1997).
Determining whether a stay is justified requires an “exercise of judgment, which must
weigh competing interests and maintain an even balance.” Landis, 299 U.S. at 254-55.
Defendant Dyck-O’Neal asked this Court to exercise its discretionary judgment and stay
these proceedings. Unhappy by the decision it received, it now objects to Judge McCoy’s
inherent discretion and claims his reasoning is clearly erroneous and contrary to the law.
Given the standard by which a court may grant or deny a motion to stay, the Court is
perplexed by Defendant Dyck-O’Neal’s objection. The Court can say with firm conviction
that a mistake has not been made in the Order dated August 3, 2016. (Doc. #77).
Accordingly, it is now ORDERED:
Defendant Dyck-O’Neal, Inc.’s Objection to Magistrate’s Order (Doc. #79) is
The Court affirms the Honorable Mac R. McCoy’s Order denying
Defendants’ motions to stay (Doc. #77).
DONE and ORDERED in Fort Myers, Florida this 12th day of September 2016.
Copies: All Parties of Record
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