UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

KENNETH BUTCHER and TOBI BUTCHER,

Plaintiffs,

v. Case No. 8:21-cv-2774-VMC-DAB

KNAUF GIPS KG, KNAUF PLASTERBOARD TIANJIN CO. LTD. and KNAUF NEW BUILDING SYSTEM (TIANJIN) CO. LTD.,

Defendants. ___________________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION ON SUMMARY JUDGMENT ISSUES PARTICULAR TO THIS CASE

This matter is before the Court on the report and recommendation of Judge David A. Baker, entered on October 19, 2022 (the “Report”). (Doc. 59). Judge Baker recommends granting “Defendants’ Motion for Partial Summary Judgment on Issues Particular to This Case and Incorporated Memorandum of Law” (Doc. 53). Background This is one of twenty-five related cases filed against the Knauf Defendants asserting claims under various legal theories for damages from defective drywall manufactured by the Knauf Defendants and placed in the stream of commerce. Specifically, Plaintiffs alleged that components of the drywall installed in their homes reacted or broke down and released harmful sulfur compounds and other gases. Plaintiffs’ claims were previously pending in a multidistrict litigation in the

Eastern District of Louisiana (MDL 09-2047), presided over by District Judge Eldon E. Fallon. Following Judge Fallon’s suggestion of remand and further proceedings, these twenty-five unresolved cases were transferred to this district, severed, and filed as separate actions. The cases were uniformly assigned to Judge Baker for pretrial matters, including orders or reports and recommendations as appropriate. The Knauf Defendants filed one motion for summary judgment in each of these cases addressing common issues, and one motion in each case addressing

issues specific to the particular case. The Report at issue here addresses an issue relating to this particular case: whether Plaintiffs can recover damages for diminution in value and loss of use. The Report recommends that the Court grant the motion. Plaintiffs filed an objection to the Report on November 2, 2022. (Doc. 63). With consent, review of the Report and consideration of any objections was

assigned to the undersigned. The case remains under the authority of its assigned district judge in all other respects. Legal Standard After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge’s report and recommendation.

(b)(1); Camby v. Davis,

(4th Cir. 1983); Williams v. Wainwright,

(11th Cir.

1982). A district court must “make a de novo determination of those portions of the [report and recommendation] to which an objection is made.”

(b)(1)(C). When no objection is filed, a court reviews the report and recommendation for clear error. Macort v. Prem, Inc.,

(11th Cir. 2006); Nettles v. Wainwright,

(5th Cir. 1982). Analysis After careful consideration of the record, including Judge Baker’s Report, the

Court adopts the Report. Judge Baker recommends granting the Knauf Defendants’ motion for partial summary judgment, noting their argument that Plaintiffs have presented no competent evidence as to the value of their property and that they vacated the property before discovering the defective drywall. Plaintiffs failed to file a response to the motion, and Judge Baker accordingly recommends treating the motion as

unopposed. On January 4, 2023, Plaintiffs moved for leave to file a belated response to the partial summary judgment motion. (Docs. 66, 67). Judge Baker denied the motion for leave as untimely. The Court agrees with Judge Baker’s conclusion in the Report. Therefore, the Court adopts the Report, and grants the motion for partial summary judgment as to diminution of property value and loss of use. Accordingly, it is ORDERED, ADJUDGED, and DECREED: 1. The report and recommendation (Doc. 59) is AFFIRMED and ADOPTED and INCORPORATED BY REFERENCE into this Order for all purposes, including appellate review. 2. “Defendants’ Motion for Partial Summary Judgment on Issues Particular to This Case and Incorporated Memorandum of Law” (Doc. 53) is GRANTED with respect to Plaintiffs’ claimed damages for diminution in value and loss of use. DONE and ORDERED in Chambers, in Tampa, Florida, this 3d day of February, 2023.

□□ Af? yh -TOMBARBER i (asi‘“s:;Csi‘: UNITED STATES DISTRICT JUDGE

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