PROFESSIONAL KITCHEN INSTALLER GROUP INC

v.

COLON JR.

THIS CAUSE comes before the Court upon Magistrate Judge Hunt's Report and Recommendation on Defendants' Motion to Dismiss Plaintiff's Amended Complaint (the “Report”) [ECF No. 24], issued on February 16, 2024. Upon review of the Motion [ECF No. 18], Plaintiff's Response in Opposition [ECF No. 19], and the Report [ECF No. 24], [fn 1] the Court hereby ACCEPTS the Report [ECF No. 24]; DENIES Defendants' Motion to Dismiss [ECF No. 18]; and orders Defendants to file an answer or response to Plaintiff's Amended Complaint [ECF No. 6] on or before March 12, 2024.

BACKGROUND

On February 16, 2024, following referral, Magistrate Judge Patrick M. Hunt issued a Report recommending the Court deny Defendants' Motion to Dismiss Plaintiff's Amended

CASE NO. 23-61617-CIV-CANNON/Hunt

Complaint and permit Defendants an opportunity to respond to Plaintiff's Amended Complaint [ECF No. 24 pp. 3–5]. Objections to the Report were due on February 23, 2024 [ECF No. 24 p. 6]. No party has filed objections, and the time to do so has expired.

LEGAL STANDARDS

To challenge the findings and recommendations of a magistrate judge, a party must file specific written objections identifying the portions of the proposed findings and recommendation to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F. 2d 815, 822 (11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court reviews de novo those portions of the report to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). To the extent a party fails to object to parts of the magistrate judge's report, the Court may accept the recommendation so long as there is no clear error on the face of the record. Macort, 208 F. App’x at 784. Legal conclusions are reviewed de novo, even in the absence of an objection. See LeCroy v. McNeil, 397 F. App'x 554, 556 (11th Cir. 2010); Cooper-Houston v. S. Ry. Co., 37 F. 3d 603, 604 (11th Cir. 1994).

DISCUSSION AND CONCLUSION

Following review, the Court finds no clear error in the Report. Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. The Report and Recommendation [ECF No. 24] is ACCEPTED. [fn 2]

CASE NO. 23-61617-CIV-CANNON/Hunt

2. Defendants' Motion [ECF No. 18] is DENIED in accordance with the Report. [fn 3] 3. On or before March 12, 2024, Defendants shall answer or respond to Plaintiff's Amended Complaint [ECF No. 6].

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 26th day of February 2024.

/s/ Aileen M. Cannon

AILEEN M. CANNON

UNITED STATES DISTRICT JUDGE

cc: counsel of record

[fn 1]: Defendant did not file a Reply in support of its Motion or otherwise address Plaintiff's arguments about Florida law [ECF No. 19 p. 3].

[fn 2]: Although it is unclear whether Plaintiff is relying on the “lost or destroyed" language referenced in Env't Servs., Inc. v. Carter, 9 So. 3d 1258, 1268 (Fla. Dist. Ct. App. 2009), Fla. Stat. § 90.954(3) contains other, potentially applicable provisions, and in any event, it appears the ultimate question (at least on this issue) will be whether the Court is satisfied as to the essential terms of the purported non-compete. Defendant neither filed a Reply nor timely objected to the Report.

[fn 3]: Defendant is not precluded from making its “writing” argument at later stages of this proceeding. See Fla. Stat. § 542.335 (prohibiting a court from enforcing a restrictive covenant “unless it is set forth in a writing signed by the person against whom enforcement is sought").