Atkins et al v. Smalbach et al

Filing 26

ORDER adopting 16 Report and Recommendation; finding as moot 25 Motion for Extension of Time; granting in part and denying in part 6 Motion to Remand. The claims against Defendant Neal Smalbach are severed and remanded to the Fifth Judicial Circuit in and for Marion County, Florida. No later than April 3, 2015, Plaintiffs must file a Fourth Amended Complaint addressed only to Defendant Mick and Associates. No later than April 24, 2015, Mick and Associates must respond to the Fourth Amended Complaint. The parties have until April 13, 2015 to file a Case Management Report. Signed by Judge Timothy J. Corrigan on 3/13/2015. (WG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JAMES W. ATKINS, et al.,
Plaintiffs,
v.

Case No. 5:14-cv-593-Oc-32PRL

NEAL S. SMALBACH, EVEREST
INDEMNITY INSURANCE
COMPANY, a Delaware Corporation,
and MICK AND ASSOCIATES, PC,
LLO, a Nebraska professional limited
liability company,
Defendants.
ORDER
This case is before the Court on Plaintiffs' Motion to Remand (Doc. 6) and the
associated filings (Doc. 9; Doc. 10; Doc. 15). On February 6, 2015, the assigned United
States Magistrate Judge issued a Report and Recommendation (Doc. 16)
recommending that the motion be denied and that Counts I and II of Plaintiff’s Second
Amended Complaint be severed and remanded to state court. Plaintiffs objected to the
Report and Recommendation (Doc. 20) and Defendant Mick and Associates responded
(Doc. 24). 1 Plaintiffs filed a Third Amended Complaint (Doc. 22), which provides more
detailed allegations against Mick and Associates but does not change the analysis on

Defendant Neal Smalbach filed an objection to the removal in state court.
(Doc. 23).
1

the remand motion. 2 Upon de novo review of the file, and for the reasons stated in the
Report and Recommendation (Doc. No. 16), it is hereby
ORDERED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 16) is

ADOPTED as the opinion of the Court.
2.

Plaintiffs’ Motion to Remand (Doc. 6) is GRANTED in part and

DENIED in part.
3.

The claims against Defendant Neal Smalbach, Counts I and II, are

severed and REMANDED to the Fifth Judicial Circuit in and for Marion County,
Florida. The Clerk should therefore terminate Smalbach as a party to this case.
However, this case should remain open as to the remaining parties.
4.

No later than April 3, 2015, Plaintiffs must file a Fourth Amended

Complaint addressed only to Defendant Mick and Associates. No later than April 24,
2015, Mick and Associates must respond to the Fourth Amended Complaint.
5.

Mick and Associates’ motion for extension of time to respond to Plaintiffs’

Third Amended Complaint (Doc. 25) is therefore MOOT.
6.

The parties have until April 13, 2015 to file a Case Management Report.

The Court need not decide whether Plaintiffs had authority to file the Third
Amended Complaint without Court approval because the determination of that issue
would not change the result.
2

2

DONE AND ORDERED in Jacksonville, Florida the 13th day of March, 2015.

w.
Copies to:
Honorable Philip R. Lammens
United States Magistrate Judge
Counsel of record

3