Helix Investment Management, SLP v. Privilege Direct Corp. et al

Filing 109

ORDER: United States Magistrate Judge Anthony E. Porcelli's Report and Recommendation (Doc. # 105 ) is ACCEPTED and ADOPTED. The Motion for Preliminary Injunction (Doc. # 91 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 2/6/2019. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HELIX INVESTMENT MANAGEMENT, LP,
Plaintiff,
v.

Case No. 8:18-cv-206-T-33AEP

PRIVILEGE DIRECT CORP., ET AL.,
Defendants.
/
ORDER
This matter comes before the Court upon consideration of
United States Magistrate Judge Anthony E. Porcelli’s Report
and Recommendation (Doc. # 105), entered on January 7, 2019,
recommending that Plaintiff Helix Investment Management, LP’s
Motion for Preliminary Injunction (Doc. # 91) be denied.
Defendants Oliphant Financial Group, LLC, Oliphant Financial
Corporation, and Robert A. Morris (the Oliphant Defendants)
filed a limited Objection to the Report and Recommendation on
January 22, 2019. (Doc. # 107). Helix filed a Response in
Opposition to the Objection on February 5, 2019. (Doc. # 108).
As

explained

below,

the

Court

adopts

the

Report

and

Recommendation.
I.

Background

Helix filed this action against the Oliphant Defendants
1

as well as against Defendant Privilege Direct Corp. on January
23, 2018. (Doc. # 1). With leave of the Court, Helix filed an
Amended Complaint on May 17, 2018. (Doc. # 46). Thereafter,
Helix once again sought leave to amend the Complaint, which
the Court granted. (Doc. ## 49, 50).

Thus, the Second Amended

Complaint was filed on June 18, 2018. (Doc. # 51).

The

Oliphant Defendants sought dismissal of the Second Amended
Complaint. (Doc. # 54).

The Court held oral argument on the

Motion to Dismiss and directed that the parties provide
further briefing. (Doc. # 71). Helix subsequently requested
the opportunity to amend, which the Court granted.

(Doc. ##

56, 88). The Third Amended Complaint, which is the operative
Complaint, was filed on December 10, 2018. (Doc. # 95).
Helix also filed a Motion for Preliminary Injunction on
December 4, 2018. (Doc. # 91). The Court referred the Motion
for Preliminary Injunction to the Magistrate Judge for the
issuance of a Report and Recommendation. (Doc. # 94). The
Oliphant Defendants responded to the merits of the Motion for
Preliminary Injunction, but also raised the argument that the
Court lacks subject matter jurisdiction over the case based
on a lack of complete diversity of citizenship. (Doc. # 97).
The Oliphant Defendants provide a comprehensive discussion of
2

their jurisdictional arguments in a Motion to Dismiss filed
on December 21, 2018. (Doc. # 100).

The Motion to Dismiss

is ripe for the Court’s review and currently under advisement.
(Doc. # 104).
After holding a hearing, the Magistrate Judge issued a
Report

and

Injunction.

Recommendation
(Doc.

Recommendation

#

on

105).

contains

the

Motion

Although

a

discussion

for

Preliminary

the

Report

of

the

and

unique

jurisdictional issue raised by the Oliphant Defendants, it
does not contain a formal recommendation regarding whether
the requirements for complete diversity of jurisdiction are
satisfied.

Instead, the Magistrate Judge postulates: “Given

that jurisdiction based on complete diversity of citizenship
may exist, the undersigned finds it appropriate to consider
Helix’s Motion for Preliminary Injunction and the response in
opposition.” (Doc. # 105 at 3)(emphasis added).
After finding that a possibility exists that the Court
has jurisdiction, the Magistrate Judge analyzes the request
for a preliminary injunction. The Magistrate Judge recommends
denial of the Motion for Preliminary Injunction because Helix
failed to demonstrate that it will suffer irreparable harm in
the absence of injunctive relief.
3

The Magistrate Judge

correctly states that “this action is, quite simply, all about
money.” (Id. at 5).

The Magistrate Judge points out that

“Helix is only seeking monetary damages” and “because the
portfolio accounts [in dispute in this case] can be valued
and the money within is fungible, the injury to Helix [if
any] can be undone through monetary damages.” (Id. at 6).
II.

Analysis

After conducting a careful and complete review of the
findings and recommendations, a district judge may accept,
reject,

or

modify

recommendation.

28

the

magistrate

U.S.C.

§

judge’s

636(b)(1);

report

and

Williams

v.

Wainwright, 681 F.2d 732 (11th Cir. 1982). In the absence of
specific objections, there is no requirement that a district
judge review factual findings de novo, Garvey v. Vaughn, 993
F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept,
reject, or modify, in whole or in part, the findings and
recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge
reviews legal conclusions de novo, even in the absence of an
objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604
(11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428,
1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th Cir. 1994).
Upon due consideration of the record, including Judge
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Porcelli’s Report and Recommendation as well as the Oliphant
Defendants’

Objection

thereto,

the

Court

overrules

the

Objection, adopts the Report and Recommendation, and denies
the Motion for Preliminary Injunction.
The

Court

notes

that

the

Oliphant

Defendants

are

objecting to a perceived jurisdictional finding in the Report
and Recommendation.

As the Defendants in this case, the

Oliphant

obviously

Defendants

take

no

issue

with

the

recommendation that Helix’s request for injunctive relief be
denied.

The

jurisdictional

Court
issues

notes

that

raised

in

it
the

will

decide

Motion

to

the

Dismiss

separately and does not view the Report and Recommendation as
squarely deciding the discrete issue of whether the Court has
subject matter jurisdiction over the case.

Thus, in adopting

the Report and Recommendation, including its jurisdictional
discussion,

it

is

not,

at

this

time,

deciding

the

jurisdictional issue presented in the Motion to Dismiss.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

United States Magistrate Judge Anthony E. Porcelli’s
Report and Recommendation (Doc. # 105) is ACCEPTED and
ADOPTED.
5

(2)

The Motion for Preliminary Injunction (Doc. # 91) is
DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this

6th day of February, 2019.

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