PK Studios, Inc. v. R.L.R. Investments, LLC et al

Filing 161

OPINION AND ORDER overruling 145 Exceptions; denying 117 Motion for Leave to File Amended Answer and Affirmative Defenses; accepting and adopting 132 Report and Recommendations. Signed by Judge John E. Steele on 4/14/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PK STUDIOS, INC.,
Plaintiff,
v.

Case No: 2:15-cv-389-FtM-29CM

R.L.R.
INVESTMENTS,
LLC,
EAGLES LANDING VILLAS AT
GOLDEN OCALA, LLC, GOLDEN
OCALA GOLF & EQUESTRIAN CLUB
MANAGMENT,
LLC,
STOCK
DEVELOPMENT, LLC, and BRIAN
STOCK,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #132), filed
February 7, 2017, recommending that Crossclaim-defendants Stock
Development, LLC and Brian Stock's (the Stock defendants) Motion
for Leave to File Amended Answer and Affirmative Defenses (Doc.
#117) be denied.

Crossclaim-defendants Stock Development, LLC and

Brian Stock filed Exceptions to the Report and Recommendation of
the Magistrate (Doc. #145) on February 21, 2017, and Crossclaimplaintiffs
Golden

R.L.R.

Ocala,

LLC

Investments,
and

Golden

LLC,
Ocala

Eagles
Golf

Landing
&

Villas

Equestrian

at

Club

Management, LLC filed a Response (Doc. #158) on April 5, 2017. 1

1

Crossclaim-plaintiffs were granted leave to file a response

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.

28 U.S.C. §

636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).

A district judge “shall make a de novo determination of

those portions of the report or specified proposed findings or
recommendations
636(b)(1).

to

which

objection

is

made.”

28

U.S.C.

§

See also United States v. Farias-Gonzalez, 556 F.3d

1181, 1184 n.1 (11th Cir. 2009).

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. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R.
1609, 94th Cong., § 2 (1976)).

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).
As a preliminary matter, the Stock defendants rely on Fed. R.
Civ. P. 15 to freely allow amendments, however the motion was
denied pursuant to Fed. R. Civ. P. 16(b) because it was made after
the expiration of the deadline to amend pleadings, and required a
showing of good cause.

The Magistrate Judge did not find good

cause because the Stock defendants failed to diligently engage in

after the case was reopened.

(Doc. #154.)

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discovery to uncover the information sooner, and then delayed in
bringing a motion to amend after plaintiff produced discovery from
a non-party and the Affidavit of its owner.

The Magistrate Judge

further found the potential for prejudice, and undue delay, given
that the case had been pending since June 29, 2015, and the motion
was filed a month before the close of discovery.
As relevant here, the December 1, 2016 Affidavit of Fereydoon
Pezeshkan, the principal and owner of PK Studios, Inc., alleges:
12. In mid-November 2012, I received a call
from Eric at F&G Construction. He knew that PK
Studios was the architect for the Paseo and
Ole developments and said that he was told
that we were working on updating plans. He
requested updated plans for pricing purposes
for a project in Ocala. I indicated to him
that I was not aware of any such project, and
he indicated that I should speak with Mr. Rick
Duken, the contact for the Developer.
13. Shortly after my conversation with Eric,
I contacted Mr. Duken. I advised Mr. Duken
that the Paseo and Ole Plans were “our plans”
and that we would be happy to assist him with
the Ocala project. Mr. Duken indicated that
the Developer was not sure what direction it
would be heading, and that he would get back
with me if they wanted to use our services. I
never heard back from Mr. Duken, and quite
honestly, forgot about the potential work.
14. In 2014, my office was again contacted
relative to plans for a project in Ocala.
Eric, of F&G Construction, appeared to be
confused and thought that PK Studios was the
architect for the Eagles Landing Project in
Golden Ocala, Marion County, Florida (the
“Eagles Landing Project”). I then discovered
that RLR, Eagles Landing, and Golden Ocala
(hereinafter
collectively
“Developer

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Defendants”) had in fact moved forward with
the Project by copying and using our Plans.
Upon investigation, I discovered that the
Developer Defendants had been advertising on
their website, and designing and constructing
residences with the Plans within the Eagles
Landing Project, located in the Golden Ocala
development, that were identical to the floor
plans of the casitas/villas and townhomes that
my staff and I had designed for the Ole and
Paseo communities. It now appears that Mr.
Duken
and
the
Developer
Defendants
intentionally copied and used our Plans
knowing that PK Studios asserted ownership of
the Plans.
(Doc. #94-1, Exh. A, ¶¶ 12-14) (emphasis added).
reference

to

Construction
allegation

a
was

that

mid-November
not
PK

2012,

previously

Studios

call

was

stated

from
in

contacted

in

a

Although the
Eric

at

F&G

pleading,

the

May

2014,

by

a

representative of contractor F&G Construction, “who appeared to be
confused and thought Plaintiff was the architectural firm” was
contained in the original June 29, 2015 Complaint (Doc. #1, ¶ 17).
According to the Crossclaims (Doc. #54) and Answer (Doc. #56)
thereto, the Developer defendants entered into a license agreement
with

the

Stock

defendants

on

or

about

November

5,

2012,

an

obviously relevant time period to plaintiff’s claims and the
crossclaims.

(Doc. #54, p. 20, ¶ 4; Doc. #56, ¶ 4.)

The fact that there was prior contact in 2012, prior to the
2014 contact, was easily discoverable if the Stock defendants had
made the request during the discovery process or sought further

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information regarding the identified non-party, F&G Construction.
The lack of diligence during discovery obfuscates any good cause.
After a careful and complete review of the findings and
recommendations, as well as an independent review of the record in
this

case,

the

Court

accepts

and

adopts

the

Report

and

Recommendation of the magistrate judge, and will overrule the
objections of the crossclaim-defendants (the Stock defendants).
Accordingly, it is now
ORDERED:
1. The

Report

and

Recommendation

(Doc.

#132)

is

hereby

ACCEPTED and ADOPTED and the findings incorporated herein.
2. Crossclaim-defendants

Stock

Development,

LLC

and

Brian

Stock filed Exceptions to the Report and Recommendation of
the Magistrate (Doc. #145) are overruled.
3. Crossclaim-defendants
Stock's

Motion

for

Stock
Leave

Development,
to

File

LLC

Amended

and

Brian

Answer

and

14th

day

Affirmative Defenses (Doc. #117) is denied.
DONE and ORDERED at Fort Myers, Florida, this
of April, 2017.

Copies:
All Parties of Record

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