Al-Rayes et al v. Willingham et al

Filing 151

ORDER adopting 144 Report and Recommendation; denying 106 Defendant's Motion to Dismiss; striking 128 Defendant's Motion for Summary Judgment. See Order for summary judgment briefing schedule. Final pretrial conference continued to December 18, 2017, at 10:00 a.m. Jury trial set for trial term commencing on January 2, 2018, at 9:30 a.m. Signed by Judge Marcia Morales Howard on 6/7/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ABDULLAH M. AL-RAYES, et al.,
Plaintiff,
v.

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

ERIKA M. WILLINGHAM, Individually
and as Trustee of the Erika M.
Willingham Trust,
Defendant.

ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Dkt. No.
144; Report), entered by the Honorable Joel B. Toomey, United States Magistrate Judge,
on May 17, 2017. In the Report, Judge Toomey recommends that Defendant Erika M.
Willingham’s Motion to Dismiss Plaintiffs’ Third Amended Complaint With Prejudice (Dkt.
No. 106; Motion to Dismiss) be denied. See Report at 1, 12. Neither party has filed
objections to the Report, and the time for doing so has now passed.
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 fact 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 accept and adopt the legal and factual conclusions
recommended by the Magistrate Judge.
Before doing so, the Court notes that in Defendant’s Motion for Summary Judgment
(Dkt. No. 128; Motion for Summary Judgment), Defendant incorporates by reference the
arguments raised in the Motion to Dismiss. See Motion for Summary Judgment at 8.
This is improper, and therefore, the Motion for Summary Judgment is due to be stricken.1
The Court will allow Defendant the opportunity to file a proper self-contained motion for
summary judgment.

However, in light of this, the undersigned finds it necessary to

continue the final pretrial conference and trial in this matter.
In light of the foregoing, it is hereby
ORDERED:
1.

The Magistrate Judge’s Report and Recommendation (Dkt. No. 144) is
ADOPTED as the opinion of the Court.

2.

Defendant Erika M. Willingham’s Motion to Dismiss Plaintiffs’ Third Amended
Complaint With Prejudice (Dkt. No. 106) is DENIED.

3.

Defendant’s Motion for Summary Judgment (Dkt. No. 128) is STRICKEN.

4.

Defendant shall have up to and including June 27, 2017, to file a proper selfcontained motion for summary judgment, which shall not exceed thirty (30)

1

Counsel, not the Court, bear the obligation of determining which arguments made at the motion to dismiss
stage of the proceedings remain viable at summary judgment, and what evidence supports or relates to
those arguments. This cannot be accomplished by a blanket incorporation by reference of the prior
arguments. Moreover, such an incorporation fails to account for the differing standards of review and the
development of facts through discovery. Counsel must review the arguments and the facts as developed,
select the appropriate bases for moving for summary judgment and present those in a properly supported
motion for summary judgment filed in accordance with the Federal Rules of Civil Procedure and the Local
Rules of this Court.

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pages. Plaintiffs shall have up to and including July 11, 2017, to file a
response, which shall not exceed twenty-five (25) pages. Defendant may
file a reply no later than July 21, 2017, and Plaintiffs may file a sur-reply no
later than July 31, 2017. The reply and sur-reply shall not exceed ten (10)
pages each.
5.

The following deadlines shall apply:

All Other Motions Including Motions In Limine

NOVEMBER 27, 2017

Responses to All Other Motions Including Motions In Limine

DECEMBER 11, 2017

Joint Final Pretrial Statement

DECEMBER 11, 2017

Final Pretrial Conference

Date:
Time:
Judge:

Trial Term Begins
[Trials Before Magistrate Judges Begin on Date Certain]
Estimated Length of Trial

DECEMBER 18, 2017
10:00 A.M.
Marcia Morales Howard
JANUARY 2, 2018

4-5 days

Jury/Non-Jury

Jury

DONE AND ORDERED in Jacksonville, Florida this 7th day of June, 2017.

ja
Copies to:
Counsel of Record

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