Al-Rayes et al v. Willingham et al

Filing 102

ORDER denying 91 Plaintiffs' Motion to Strike; overruling 87 Plaintiffs' Limited Objections; adopting 79 Report and Recommendation; granting in part and denying in part 51 Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint With Prejudice. The Second Amended Complaint is dismissed without prejudice. Amended complaint due November 18, 2016. Signed by Judge Marcia Morales Howard on 10/17/2016. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ABDULLAH M. AL-RAYES, et al.,
Plaintiffs,
-vs-

Case No. 3:15-cv-107-J-34JBT

ERIKA M. WILLINGHAM, et al.,
Defendants.
_____________________________________/

ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Doc. 79;
Report), entered by the Honorable Joel B. Toomey, United States Magistrate Judge, on
August 15, 2016. In the Report, Magistrate Judge Toomey recommends that Defendant
Erika M. Willingham’s (“Defendant”) Motion to Dismiss Plaintiffs’ Second Amended
Complaint With Prejudice (Doc. 51; Motion), be granted in part and denied in part. See
Report at 14. On August 31, 2016, Plaintiffs filed objections to the Report. See Plaintiffs’
Limited Objections to the Honorable Joel B. Toomey, U.S.M.J.’s August 15, 2016 Report
and Recommendation (Doc. 87; Objections). Defendant responded on September 14,
2016, with Defendant’s Response in Opposition to Plaintiffs’ Limited Objection to the
Honorable Joel B. Toomey’s August 16, 2016 Report and Recommendation (Doc. 89;
Response).1 Thus, the matter is ripe for review.

1 On September 19, 2016, Plaintiffs filed a motion seeking to strike the Response from the court record.
See Plaintiffs’ Motion to Strike Defendant Erika M. Willingham’s Response in Opposition to Plaintiffs’
Limited Objection to the Honorable Joel B. Toomey’s August 15, 2016 Report and Recommendation (Doc.
91; Motion to Strike). Although Defendant has not responded to the Motion to Strike, upon review, the
Court determines that it is due to be denied.

The Court “may accept, reject, or modify, in whole or in part, the finding or
recommendations by the magistrate judge.” 28 U.S.C. § 636(b). If no specific objections
to findings of facts are filed, the district court 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 court must review legal conclusions de
novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla.
May 14, 2007).
Upon independent review of the file and for the reasons stated in the Magistrate
Judge’s Report, the Court will overrule the Objections and accept and adopt the legal and
factual conclusions recommended by the Magistrate Judge. As such, Plaintiffs’ Second
Amended Complaint is due to be dismissed without prejudice, and Plaintiffs will be given
an opportunity to file an amended complaint. Accordingly, it is hereby
ORDERED:
1. Plaintiffs’ Motion to Strike Defendant Erika M. Willingham’s Response in
Opposition to Plaintiffs’ Limited Objection to the Honorable Joel B. Toomey’s
August 15, 2016 Report and Recommendation (Doc. 91) is DENIED.
2. Plaintiffs’ Limited Objections to the Honorable Joel B. Toomey, U.S.M.J.’s
August 15, 2016 Report and Recommendation (Doc. 87) are OVERRULED.
3. The Magistrate Judge’s Report and Recommendation (Doc. 79) is ADOPTED
as the opinion of the Court.
4. Defendant’s Motion to Dismiss Plaintiffs’ Second Amended Complaint With
Prejudice (Doc. 51) is GRANTED in part and DENIED in part.

5. The Motion is GRANTED to the extent that the Second Amended Complaint is
DISMISSED without prejudice. Otherwise the Motion is DENIED.
6. Plaintiffs shall have up to and including November 18, 2016, to file an amended
complaint consistent with the directives of the Court.
DONE AND ORDERED in Jacksonville, Florida, this 17th day of October, 2016.

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Copies to:
The Honorable Joel B. Toomey
United States Magistrate Judge
Counsel of Record