Chris-Antonio v. IH6 Property Florida LP

Filing 33

ORDER ADOPTING IN PART 27 Report and Recommendation. See Order for details. Signed by Judge Mary S. Scriven on 5/13/2024. (AC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRIS-ANTONIO: POW,
Plaintiff,
v.

Case No: 8:23-cv-2397-MSS-NHA

I6 PROPERTY FLORIDA LP,
Defendant.

ORDER
THIS CAUSE comes before the Court for consideration of Plaintiff’s
Application to Proceed in District Court Without Prepaying Fees or Costs, (Dkt. 16),
which the Court construes as a motion to proceed in forma pauperis. Also before the
Court is Plaintiff’s Amended Complaint. (Dkt. 19) On April 5, 2024, United States
Magistrate Judge Natalie Hirt Adams issued a Report and Recommendation, (Dkt.
27), which recommended Plaintiff’s Motion to Proceed In Forma Pauperis be denied
without leave to amend and Plaintiff’s Amended Complaint be dismissed. Specifically,
Judge Adams recommended Plaintiff’s claim that the bankruptcy stay was violated be
dismissed without prejudice, subject to Plaintiff’s right to file his claim in the
bankruptcy court. Judge Adams further recommended that all of Plaintiff’s other
claims be dismissed without leave to amend. Plaintiff filed an objection to Judge
Adams’s Report and Recommendation on April 16, 2024. (Dkt. 28) Upon

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consideration of all relevant filings, case law, and being otherwise fully advised, the
Court ORDERS as follows.
In the Eleventh Circuit, a district judge may accept, reject, or modify the
magistrate judge's report and recommendation after conducting a careful and complete
review of the findings and recommendations. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). A district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This requires
that the district judge “give fresh consideration to those issues to which specific
objection has been made by a party.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507,
512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong. § 2 (1976)). Absent 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. Southern Ry., 37 F.3d 603, 604 (11th Cir.
1994).
Upon review of the filings and Judge Adams’s Report and Recommendation,
the Court ADOPTS THE RECOMMENDATION IN PART.

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First, Plaintiff’s claims for breach of fiduciary duty, breach of contract, the
Uniform Commercial Code (the “UCC”), and violation of 16 C.F.R. §§ 433.2 and
433.2 should be dismissed without prejudice.
Second, the Court finds dismissal of Plaintiff’s defamation and negligence
claims because of the litigation privilege would be premature at this stage. The
litigation privilege is an affirmative defense. See Jackson v. BellSouth Telecomms.,
372 F.3d 1250, 1277 (11th Cir. 2004). Defendant may raise the litigation privilege at
an appropriate stage in the proceedings.
The Court finds Plaintiff facially states a claim for defamation. Plaintiff alleges
Defendant defamed Plaintiff when it claimed Plaintiff never tendered payment during
the state court eviction proceedings. (Dkt. 19 at ¶ 6) Plaintiff states, “Defendant[’s]
statement to the lower court was false and defamatory.” (Id. at 3) Plaintiff sufficiently
pleads damages resulting from the alleged defamation. (Id.) The Court finds these
pleadings sufficient to state a claim for defamation.
However, Plaintiff fails to state a claim for negligence because Plaintiff does not
plead the basis for any duty owed to Plaintiff by Defendant or Defendant’s attorney.
See Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So. 2d 192, 194 (1987)
(holding a plaintiff must show he was the client of an attorney to maintain an action
in negligence against the attorney). As such, the claim is due to be dismissed without
prejudice.
Next, the Court concurs that Plaintiff states a claim for violation of the
bankruptcy court’s automatic stay. As Judge Adams noted, this Court has jurisdiction
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to hear such a claim. Justice Cometh, Ltd. v. Lambert, 426 F.3d 1342, 1343 (11th Cir.
2005). Should Defendant wish to seek transfer of this cause of action to the bankruptcy
court, Defendant would be free to file a motion requesting such relief.
Finally, the Court concurs with Judge Adams’s recommendation that Plaintiff’s
claims under the Negotiable Instrument Act and the Federal Reserve Act should be
dismissed with prejudice.
Upon consideration of the Report and Recommendation, in conjunction with
an independent examination of the file, the Court is of the opinion the Report and
Recommendation should be adopted in part. Accordingly, it is ORDERED that:
1.

The Report and Recommendation, (Dkt. 27), is ADOPTED IN PART;

2.

Plaintiff’s Motion to Proceed In Forma Pauperis, (Dkt. 16), is
GRANTED;

3.

The Amended Complaint, (Dkt. 19), is DISMISSED IN PART;
a. Plaintiff’s defamation claim and Plaintiff’s claim regarding the
bankruptcy stay are not dismissed;
b. Plaintiff’s breach of fiduciary duty, breach of contract, UCC, 16
C.F.R. §§ 433.2 and 433.2, and negligence claims are
DISMISSED WITHOUT PREJUDICE;
c. Plaintiff’s claims under the Negotiable Instrument Act and the
Federal Reserve Act are DISMISSED WITH PREJUDICE; and

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4.

Plaintiff’s Motion to Strike the Amended Complaint, (Dkt. 29), and
Plaintiff’s Motions to Supplement the Amended Complaint, (Dkts. 30
and 31), are DENIED AS MOOT.

5.

If Plaintiff wishes to file a second amended complaint in which Plaintiff
reasserts his defamation claim, 1 reasserts his claim that Defendant
violated the automatic stay, and amends his fiduciary duty, breach of
contract, UCC, 16 C.F.R. §§ 433.2 and 433.2, and negligence claims,
Plaintiff may do so on or before May 29, 2024. If Plaintiff does not file a
second amended complaint by this deadline, this action will proceed on
the claims that are not dismissed by this Order as they are stated in the
Amended Complaint. On May 30, 2024, the Court will direct the U.S.
Marshals Service to serve the operative complaint on Defendant.

6.

The Court encourages Plaintiff to contact Bay Area Legal Services, a
non-profit law firm which provides free civil legal help to residents of
Tampa Bay, at [phone].

DONE and ORDERED in Tampa, Florida, this 13th day of May 2024.

Plaintiff is advised that Judge Adams is correct that, generally, allegations of defamation
based on statements made in litigation are privileged and they are subject to dismissal on
motion of a defendant. Thus, he should strongly reconsider whether he has a basis to pursue
these claims.
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Copies furnished to:
Counsel of Record
Any Unrepresented Person

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