Connecticut General Life Insurance Company v. Mayberg et al

Filing 32

ORDER Adopting 31 Report and Recommendations and granting in part and denying in part 27 Motion to Dismiss. Signed by Judge Darrin P. Gayles See attached document for full details. (hs01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 23-cv-21461-GAYLES/TORRES
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY,
Plaintiff,
v.
JUDITH MAE MAYBERG, et al.,
Defendants.
_______________________________/
ORDER
THIS CAUSE comes before the Court on Defendants’ Motion to Dismiss (the “Motion”)
[ECF No. 27]. The action was referred to Chief Magistrate Judge Edwin Torres, pursuant to 28
U.S.C. § 636(b)(1)(B), for a ruling on all pretrial, non-dispositive matters, and for a Report and
Recommendation on any dispositive matters. [ECF No. 30]. On April 27, 2024, Judge Torres issued
his report recommending that the Motion be granted in part and denied in part (the “Report”).
[ECF No. 31]. No party has objected to the Report.
A district court may accept, reject, or modify a magistrate judge’s report and
recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which
objection is made are accorded de novo review, if those objections “pinpoint the specific findings
that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see
also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific
objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint

Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc.,
208 F. App’x 781, 784 (11th Cir. 2006).
In the First Amended Complaint, Plaintiff alleges claims against Judith Mae Mayberg
(“Judith”) and her children Aviva A. Fistel (“Aviva”), Joseph Isac Mayberg (“Joseph”),
Menachem Mendel Mayberg (“Menachem”), Miriam Friedfertig (“Miriam”), Schneur Zalman
Mayberg (“Schneur”), and Shalom Douber Mayberg (“Shalom”) (collectively, the “Mayberg
Children”) (together with Judith the “Defendants”) for unjust enrichment (Count I), conversion
(Count II), and money had and received (Count III). [ECF No. 26]. In addition, Plaintiff alleges a
claim against Judith for fraudulent inducement (Count IV), and against the Mayberg Children for
aiding and abetting fraud. Id. The Mayberg Children have moved to dismiss the claims against
them. [ECF No. 27]. In his Report, Judge Torres recommends that the Court dismiss the claims in
the First Amended Complaint against the Mayberg Children except the conversion claim against
Menachem. [ECF No. 31]. The Court has reviewed the Report for clear error and agrees with Judge
Torres’s findings and recommendation.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
(1)

Judge Torres’s Report and Recommendation, [ECF No. 31], is ADOPTED in full;

(2)

Defendants’ Motion to Dismiss, [ECF No. 31], is GRANTED in part and
DENIED in part;

(3)

Plaintiff’s claims for unjust enrichment (Count I), money had and received (Count
III), and aiding and abetting fraud (Count V) against the Mayberg Children are
DISMISSED without prejudice.

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(4)

Plaintiff’s claim for conversion (Count II) against Miriam, Aviva, Shalom,
Schneur, and Joseph is DISMISSED without prejudice. Plaintiff’s claim for
conversion against Menachem may proceed.
DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of June, 2024.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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