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Burton W. Wiand, As Receiver For Valhalla Investment Partners v. Dancing $

December 21, 2011

BURTON W. WIAND, AS RECEIVER FOR VALHALLA INVESTMENT PARTNERS, L.P., VIKING FUND, LLC, VIKING IRA FUND, LLC, VICTORY FUND, LED, VICTORY IRA FUND, LED, AND SCOOP REAL ESTATE, LP, PLAINTIFF,
v.
DANCING $, LLC, DEFENDANT.



ORDER ADOPTING REPORT AND RECOMMENDATION

This cause is before the Court on the report and recommendation (R&R) issued by Magistrate Judge Mark A. Pizzo on November 21, 2011 (Docket No. 56). The magistrate judge recommended that this Court deny the motion to dismiss (Doc. 23).

Pursuant to Rule 6.02, Rules of the United States District Court for the Middle District of Florida, the parties had fourteen (14) days after service to file written objections to the proposed findings and recommendations, or be barred from attacking the factual findings on appeal. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc). The defendant filed timely objections to the report and recommendation (Docs. 57 and 58) and the Plaintiff (Receiver) filed response thereto (Doc. 60). It appears that the objections, though filed separately, are identical.

STANDARD OF REVIEW

When a party makes a timely and specific objection to a finding of fact in the report and recommendation, the district court should make a de novo review of the record with respect to that factual issue. 28 U.S.C. § 636(b)(1); U.S. v. Raddatz, 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia, 896 f.2d 507 (11th Cir. 1990). However, when no timely and specific objections are filed, case law indicates that the court should review the findings using a clearly erroneous standard. Gropp v. United Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993).

The Court has reviewed the report and recommendation and made an independent review of the record. Upon due consideration, the Court concurs with the report and recommendation and finds the response from the Receiver to be well-taken. The Court finds that the objections fail to persuade the Court that the Report and Recommendation should be rejected, in whole or in part. Accordingly, it is

ORDERED that the report and recommendation, November 21, 2011 (Doc. 56) be adopted and incorporated by reference; the objections (Docs. 57 and 58) be overruled; and the Court denies the motion to dismiss (Doc. 23).

Copies to: All parties and counsel of record Assigned Magistrate Judge

20111221

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