Poindexter v. Zacharzewski et al
Filing
73
ORDER granting 46 Motion to Strike, adopting 63 Report and Recommendations, and granting 71 Motion for Extension of Time. Signed by Judge Robin L. Rosenberg on 11/27/2018. See attached document for full details. (bkd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 2:18-CV-14155-ROSENBERG/MAYNARD
YVONNE POINDEXTER, as Personal
Representative of the Estate of Britney
Poindexter, deceased,
Plaintiff,
v.
JOSEPH ZACHARZEWSKI, as Personal
Representative of the Estate of Walter
Roney, deceased, et al.,
Defendants.
/
ORDER ADOPTING MAGISTRATE’S REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon Defendants’ Motion to Strike Plaintiff’s Claim
for Punitive Damages [DE 46], which was referred for appropriate disposition to the Honorable
Shaniek M. Maynard.
On November 5, 2018, Judge Maynard issued her Report and
Recommendation [DE 63] recommending that the Motion be granted. Plaintiff filed objections,
however, Plaintiff’s objections were untimely by seven days. Plaintiff’s late objections were
accompanied by a Motion for Extension of Time. Although the Court notes the late filed
objections, the Court grants Plaintiff’s Motion for Extension of Time and considers the
objections in light of the intervening Thanksgiving holiday. The Court has conducted a de novo
review of the Report and Recommendations, the objections, and the record and is otherwise fully
advised in the premises.
Upon review, the Court finds the Report and Recommendation to be well reasoned and
correct. The Court agrees with the analysis in the Report and Recommendations and adopts the
conclusions.
The Court briefly notes that Plaintiff’s objections raise arguments previously
brought before Magistrate Judge Maynard. Plaintiff’s objections are rejected because for the
reasons set forth in the Report and Recommendation in which the distinction was made between
how punitive damages must be pleaded (which is a matter of federal procedure), and when a
Plaintiff may seek an award of punitive damages (which is a matter of state substantive law).1
Florida law does not permit Plaintiff to seek punitive damages against a defendant estate, Lohr v.
Byrd, 522 So. 2d 845 (Fla. 1988), and Florida law controls and binds this Court. E.g., Toole v.
Baster Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000) (using Alabama law to
determine whether defendant’s conduct warranted the imposition of punitive damages); Jarzynka
v. St. Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1269 (S.D. Fla. 2004) (applying Florida law
when determining the availability of a punitive damages award).
For the foregoing reasons, it is hereby ORDERED and ADJUDGED as follows:
1. The Report and Recommendations [DE 63] is hereby ADOPTED;
2. Defendants’ Motion to Strike Plaintiff’s Claim for Punitive Damages [DE 46] is
GRANTED; and
3. Plaintiff’s Motion for Extension of Time [DE 71] is GRANTED.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 27th day of
November, 2018.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to Counsel of Record
1
The substantive law of Florida is applied in this case because the Plaintiff has invoked the diversity jurisdiction of
this Court. E.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
2
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