In the Matter of Charles C. Walker

Filing 47

ORDER adopting 38 Report and Recommendation of the Magistrate Judge. The Report and Recommendation of the Magistrate Judge is adopted, confirmed, and approved in all respects and is made a part of this Order for all purposes, including appellate review. Respondent Lonny A. Mead's Motion to Dismiss and/or Motion for Summary Judgment (Doc. 15) is DENIED. Signed by Judge Charlene Edwards Honeywell on 6/18/2014. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHARLES C. WALKER,
Petitioner,
v.

Case No: 6:13-cv-1894-Orl-36GJK

LONNY A. MEAD and ALL PERSONS
AND ENTITIES THAT DID NOT FILE
A CLAIM OR ANSWER,
Respondents.
ORDER
This cause comes before the Court on the Report and Recommendation of Magistrate Judge
Gregory J. Kelly, filed on May 30, 2014 (Doc. 38). In the Report and Recommendation, Magistrate
Judge Kelly recommends that Respondent Lonny A. Mead’s (“Mead”) Motion to Dismiss and/or
Motion for Summary Judgment (“Motion”) (Doc. 15) be denied. See Doc. 38. No party has
objected to the Report and Recommendation and the time to do so has expired.
The Court is in agreement with the Magistrate Judge that, to the extent the Motion seeks
dismissal under Federal Rule of Civil Procedure 12(b), any right thereto has been waived because
Mead filed his Motion contemporaneously with his answer, in contravention of Rule 12(b)’s
requirement that a motion to dismiss be filed before the responsive pleading. See Doc. 38 at 4–5;
Fed. R. Civ. P. 12(b). The Court also agrees that, to the extent the Motion seeks summary judgment
under Rule 56, the Motion must be denied as premature because discovery is still ongoing. See
Doc. 38 at 5–6. Finally, the Court agrees that summary judgment is inappropriate because genuine
issues of material fact exist as to what acts of negligence or conditions of unseaworthiness, if any,
caused Mead’s injuries and whether Petitioner Charles C. Walker had privity or knowledge of

those acts of negligence or conditions of unseaworthiness. See id. at 6–7. Therefore, after careful
consideration of the Report and Recommendation of the Magistrate Judge, in conjunction with an
independent examination of the court file, the Court is of the opinion that the Magistrate Judge’s
Report and Recommendation should be adopted, confirmed, and approved in all respects.
Accordingly, it is hereby ORDERED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 38) is adopted,
confirmed, and approved in all respects and is made a part of this Order for all
purposes, including appellate review.

2.

Respondent Lonny A. Mead’s Motion to Dismiss and/or Motion for Summary
Judgment (Doc. 15) is DENIED.

DONE and ORDERED in Orlando, Florida on June 18, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties
United States Magistrate Judge Gregory J. Kelly

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