Nazario v. Professional Account Services, Inc. et al

Filing 66

ORDER adopting 63 REPORT AND RECOMMENDATIONS re 56 MOTION to Certify Class and Incorporated Memorandum of Law filed by Eliajalyn Nazario. The Report and Recommendation 63 is ACCEPTED and ADOPTED to the extent set forth above and the findings are incorporated herein in accordance with this Opinion and Order. Plaintiff Eliajalyn Nazario's Motion to Certify Class 56 is DENIED. Signed by Judge Sheri Polster Chappell on 3/22/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ELIAJALYN NAZARIO, individually and
on behalf of all others similarly situated,
Plaintiff,
v.

Case No: 2:16-cv-772-FtM-99MRM

PROFESSIONAL ACCOUNT SERVICES,
INC. and LEHIGH HMA, LLC,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on review of United States Magistrate Judge
Mac R. McCoy’s Report and Recommendation (Doc. 63), recommending that Plaintiff
Eliajalyn Nazario’s Motion to Certify Class (Doc. 56) be denied.

Plaintiff has filed

Objections to the Report and Recommendation (Doc. 64), to which Defendants
Professional Account Services, Inc. and Lehigh HMA, LLC have responded (Doc. 65).
The Magistrate Judge recommends denying Plaintiff’s motion for class certification
because Federal Rules of Civil Procedure 23(a)’s and 23(b)(2)’s requirements are not
met. As to Rule 23(a), he finds that Plaintiff has not satisfied the commonality and
typicality prerequisites. (Doc. 63 at 17). Although this finding alone warrants denying

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class certification, he also addresses the requirements of Rule 23(b)(2) under which
Plaintiff seeks to certify a class. He finds that Plaintiff’s claims cannot be certified under
this rule because injunctive relief is not available under the Fair Debt Collection Practices
Act and Plaintiff fails to show that her monetary relief claims under the Florida Consumer
Collection Practices Act are incidental to her claims for injunctive relief. (Doc. 63 at 1926). The Court now reviews the Report and Recommendation.
A district judge “may accept, reject, or modify in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district
judge “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. 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). Also, “[p]arties filing objections to
a magistrate’s report and recommendation must specifically identify those findings
objected to. Frivolous, conclusive, or general objections need not be considered by the
district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
Plaintiff objects only to the Magistrate Judge’s findings on Rule 23(a) – not Rule
23(b)(2). (Doc. 64). This means Plaintiff does not provide any specific basis to reject the
recommendation to deny class certification for not satisfying Rule 23(b)(2). Even without
such an objection, the Court still reviews legal conclusions de novo. But, after conducting
a de novo review of the record, parties’ briefs, and applicable case law, the Court finds

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the Report and Recommendation to be well reasoned and legally sound on its Rule
23(b)(2) analysis. The Court thus denies class certification because Rule 23(b)(2) is not
satisfied. Because the Court can deny the motion on this basis alone, it need not address
Plaintiff’s specific objections to the Report and Recommendation’s findings on Rule
23(a)(2) and (3).
Accordingly, it is now
ORDERED:
1. The Report and Recommendation (Doc. 63) is ACCEPTED and ADOPTED to
the extent set forth above and the findings are incorporated herein in
accordance with this Opinion and Order.
2. Plaintiff Eliajalyn Nazario’s Motion to Certify Class (Doc. 56) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 22nd day of March 2018.

Copies: All Parties of Record

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