Della Polla v. Palencia

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 1:20-cv-23185-GAYLES/OTAZO-REYES

FABRIZIO DELLA POLLA, Plaintiff, v. ALEXANDER PALENCIA, Defendant. ______________________________________/

ORDER THIS CAUSE comes before the Court on Magistrate Judge Alicia M. Otazo-Reyes’s Report and Recommendation (the “Report”) [ECF No. 72] regarding Defendant Alexander Palencia’s Rule 12(b)(6) Motion to Dismiss (the “Motion”) [ECF No. 17]. On July 31, 2020, Plaintiff brought this action against Defendant. [ECF No. 1]. On October 26, 2020, Defendant filed his Motion seeking to dismiss Plaintiff’s Complaint. [ECF No. 17]. On November 1, 2020, the Court referred this case to Judge Otazo-Reyes, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pre-trial, non-dispositive matters and a report and recommendation on all dispositive matters. [ECF No. 21]. On April 27, 2021, Judge Otazo-Reyes issued her Report recommending that the Court deny Defendant’s Motion. Defendant timely filed objections, [ECF No. 77], to which Plaintiff responded. [ECF Nos. 78 & 92].

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 objections are 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 objections are 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).

Having conducted a de novo review of the record, the Court agrees with Judge Otazo- Reyes’s well-reasoned analysis and conclusion that Defendant’s Motion should be denied.

Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Magistrate Judge Alicia M. Otazo-Reyes’s Report and Recommendation, [ECF No. 72], is AFFIRMED AND ADOPTED and incorporated into this Order by reference.

2. Defendant Alexander Palencia’s Rule 12(b)(6) Motion to Dismiss, [ECF No. 17], is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 10th day of August, 2021.

Df UNITED STATES DISTRICV JUDGE