Roach v. Bank of America Corporation et al

Filing 54

ORDER Adopting 48 Report and Recommendations; Granting in Part 15 Motion to Dismiss; Count II of Complaint 1 is DISMISSED without prejudice. Signed by Judge Brian J. Davis on 2/2/2015. (AMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ROBERT L. ROACH, an individual,
Plaintiff,
v.

Case No: 3:14-cv-703-J-39JBT

BANK OF AMERICA CORPORATION,
et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on the Magistrate Judge’s Report and
Recommendation (Doc. 48), recommending Defendant, Argent Mortgage Company,
LLC’s Motion to Dismiss (Doc. 15) be granted and Count II of Plaintiff’s Complaint (Doc.
1) be dismissed with prejudice. Plaintiff was furnished with a copy of the Report and
Recommendation and has been afforded an opportunity to file objections. However, to
date, no objections have been filed. Indeed, Plaintiff filed his Notice of Non-Opposition
to Defendant’s Motion to Dismiss (Doc. 43), in which Plaintiff agrees his claim against
Argent should be dismissed.
The Court “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). If no specific
objections to findings of facts are filed, the district judge is not required to conduct a de
novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir.
1993); see also 28 U.S.C. § 636(b)(1). However, the district judge must review legal

conclusions de novo, even in the absence of an objection. See Cooper–Houston v.
Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994).
Upon independent review of the file and for the reasons stated in the Report and
Recommendation, the Court will accept and adopt the factual and legal conclusions
recommended by the Magistrate Judge as modified herein. Accordingly, it is
ORDERED:
1. The Magistrate Judge’s Report and Recommendation (Doc. 48) is ADOPTED
as modified as the Opinion of this Court.
2. Defendant’s Motion to Dismiss (Doc. 15) is GRANTED in part.
3. Count II of Plaintiff’s Complaint (Doc. 1) is DISMISSED without prejudice.1
DONE and ORDERED in Jacksonville, Florida this _ 2nd_ day of February,
2015.

mw
Copies furnished to:
The Honorable Joel B. Toomey
United States Magistrate Judge
Counsel of Record
Unrepresented Parties
1

The Magistrate Judge recommends dismissal of this action with prejudice based
on lack of subject matter jurisdiction. However, since the Court lacks subject matter
jurisdiction, the Court “lack[s] the power to dismiss . . . with prejudice.” Campbell v. Air
Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014) (quotation and citation omitted).
Indeed, a court without subject matter jurisdiction cannot grant a dismissal with prejudice
even when voluntary and originating from the plaintiff. Heaton v. Monogram Credit Card,
231 F.3d 994, 1000 (5th Cir. 2000).

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