Sheets v. Presseller et al

Filing 91

ORDER adopting the Magistrate Judge's 73 Report and Recommendation, recommending that Defendant Punta Gorda Downtown Merchants Association Inc.'s Motion to Quash, Strike, and Dismiss (Doc. 63) be GRANTED in part and DENIED in part. P laintiff's amended Complaint (Doc. 18) is DISMISSED for the reasons stated in the Report and Recommendation (Doc. 73). Additionally, Defendant Punta Gorda Downtown Merchants Association Inc.'s Motion to Strike Plaintiff's Second Am ended Complaint (Doc. 88) is GRANTED. The Clerk of Court is DIRECTED to strike Plaintiff's Second Amended Complaint (Doc. 82). The Court grants Plaintiff an opportunity to file a third amended Complaint on or before January 28, 2025, that c orrects the deficiencies outlined in the Report and Recommendation (Doc. 73). Failure to file an amended Complaint within the requisite time period will result in the dismissal of this case without further notice. See Order for details. Signed by Judge John L. Badalamenti on 1/6/2025. (BPC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANDREW BRYANT SHEETS,
Plaintiff,
v.

Case No: 2:24-cv-495-JLB-KCD

JERRY PRESSELLER, et. al.,
Defendants.

/
ORDER

The Magistrate Judge has entered a Report and Recommendation,
recommending that Defendant Punta Gorda Downtown Merchants Association
Inc.’s Motion to Quash, Strike, and Dismiss (Doc. 63) be GRANTED in part and
DENIED in part. (Doc. 73). No party has objected, and the time to do so has
expired.
A district judge may accept, reject, or modify the magistrate judge’s report
and recommendation. 28 U.S.C. § 636(b)(1). The district judge must “make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id.
Here, after an independent review of the entire record and noting that no
objection has been filed, the Court finds that the thorough and well-reasoned Report
and Recommendation is due to be adopted.
Additionally, the Court addresses Defendant Punta Gorda Downtown
Merchants Association Inc.’s Motion to Strike Plaintiff’s Second Amended

Complaint (Doc. 88). Here, Plaintiff filed a Second Amended Complaint on
December 21, 2024. (Doc. 82). But, Plaintiff failed to comply with Federal Rule of
Civil Procedure 15(a)(2) because he did not seek leave of Court nor did he obtain
written consent from the opposing parties before filing his Second Amended
Complaint. See Fed. R. Civ. P. 15(a). Accordingly, the Court GRANTS Defendant’s
Motion to Strike (Doc. 88). That said, the Court will allow Plaintiff an opportunity
to file a third amended Complaint on or before January 28, 2025.
Accordingly, it is ORDERED that:
(1)

The Report and Recommendation (Doc. 73) is ADOPTED and made a
part of this Order for all purposes.

(2)

Defendant Punta Gorda Downtown Merchants Association Inc.’s
Motion to Quash, Strike, and Dismiss (Doc. 63) is GRANTED in part
and DENIED in part.

(3)

Plaintiff’s amended Complaint (Doc. 18) is DISMISSED for the
reasons stated in the Report and Recommendation (Doc. 73).

(4)

Defendant Punta Gorda Downtown Merchants Association Inc.’s
Motion to Strike Plaintiff’s Second Amended Complaint (Doc. 88) is
GRANTED. The Clerk of Court is DIRECTED to strike Plaintiff’s
Second Amended Complaint (Doc. 82).

(5)

The Court grants Plaintiff an opportunity to file a third amended
Complaint on or before January 28, 2025, that corrects the deficiencies
outlined in the Report and Recommendation (Doc. 73). Failure to file a

complaint within the requisite time period will result in the dismissal
of this case without further notice.
ORDERED in Fort Myers, Florida, on January 6, 2025.