United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Magistrate Judge Joel
B. Toomey's Report and Recommendation (Doc. 34;
Report), entered on November 30, 2017. In the Report, Judge
Toomey recommends that Defendant, Countryside Power Sweeping
Inc.'s Motion to Dismiss Wausau Underwriters Insurance
Company's Complaint (Doc. 8; Motion) be denied.
See Report at 10. On December 14, 2017, Defendant
Countryside Power Sweeping, Inc. (Countryside) filed an
objection to the Report. See Defendant, Countryside
Power Sweeping, Inc.'s Objections to the Magistrate
Judge's November 30, 2017 Report and Recommendation [DE
34] (Doc. 37; Objection). Plaintiff Wausau
Underwriters Insurance Company (Wausau) filed a response on
December 27, 2017. See Plaintiff's Response and
Memorandum of Legal Authority in Opposition to Defendant
Countryside Power Sweeping, Inc.'s Objections to the
Magistrate Judge's November 30, 2017 Report and
Recommendation (Doc. 38; Response). Accordingly,
this matter is ripe for review.
Court “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). If no specific
objections to findings of facts are filed, the district court
is not required to conduct a de novo review of those
findings. See Garvey v. Vaughn, 993 F.2d 776, 779
n.9 (11th Cir. 1993); see also 28 U.S.C. §
636(b)(1). However, the district court must review legal
conclusions de novo. See Cooper-Houston v.
Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007
WL 1428615, at *1 (M.D. Fla. May 14, 2007).
objects to the Report on two grounds. See generally
Objection. First, Countryside contends that Wausau's
breach of contract claim (Count II of the Complaint (Doc.
1)) should be dismissed pursuant to Florida Statute
section 725.01, commonly referred to as the “statute of
frauds.” Id. at 3-5. Second, Countryside
contends that Wausau's claim for common law indemnity
(Count III) should be dismissed because the complaint filed
in the underlying state court litigation together with the
final judgment entered in that action contradict Wausau's
allegation that Hull Storey Gibson Companies, LLC (Hull
Storey) was faultless in the underlying state action.
Id. at 5-7; Complaint (Doc. 1-4; Underlying
Complaint); Final Judgment (Doc. 1-5).
Response, Wausau contends that Countryside's objections
are without merit. See generally Response. With
respect to Countryside's first objection, Wausau notes
that Countryside failed to raise the issue of the statute of
frauds in the Motion, disputes that the statute of frauds
governs a transfer of rights under the Services Contract, and
argues that dismissal based on the statute of frauds would be
inappropriate. Id. at 3-5. Additionally, Wausau
disputes that the Underlying Complaint and Final Judgment
refute Wausau's allegation that Hull Storey lacked fault
in the state action. Id. at 5-6.
consideration of the record, the Court finds that the
Objection is due to be overruled and that the Magistrate
Judge's legal and factual conclusions are due to be
accepted and adopted. First, the Court finds that
Countryside's arguments regarding Wausau's breach of
contract claim are not properly before the Court. As Wausau
notes in the Response, Countryside did not present any
arguments regarding the statute of frauds in the Motion.
See Response at 3-4. A “district court has the
discretion to decline to consider a party's argument when
that argument was not first presented to the magistrate
judge.” Williams v. McNeil, 557 F.3d 1287,
1292 (11th Cir. 2009). Seeing no reason for Countryside's
failure to present the issue to the Magistrate Judge, the
Court declines to consider Countryside's new argument
raised for the first time in the Objection. Thus, to the
extent Countryside seeks to have Count II dismissed, the
Objection is due to be overruled.
to Countryside's second argument, the Court finds that to
the extent Countryside seeks to have Wausau's claim for
common law indemnity dismissed, the Objection similarly is
due to be overruled. Notably, Countryside's contention
that the Underlying Complaint and Final Judgment refute
Wausau's allegations that Hull Storey was without fault
are identical to Countryside's argument previously raised
in the Motion. See Motion at 7. Preliminarily, the
Court notes that:
It is improper for an objecting party to . . . submit[ ]
papers to a district court which are nothing more than a
rehashing of the same arguments and positions taken in the
original papers submitted to the Magistrate Judge. Clearly,
parties are not to be afforded a ‘second bite at the
apple' when they file objections to a R & R.
Fox v. Colvin, No. 16-cv-61057-BLOOM/Balle, 2017 WL
1292390, at *2 (S.D. Fla. Feb. 28, 2017) (quotation omitted).
More importantly, in the Report, the Magistrate Judge
considered at length Wausau's arguments and concluded
that the entry of the Final Judgment and the allegations in
the Underlying Complaint were insufficient to refute
Wausau's allegations in the Complaint that Hull Storey
was without fault. See Report at 7-9. In the
Objection, Countryside fails to provide any authority
suggesting that the Magistrate Judge's finding is
erroneous or that he has misidentified or misapplied the
relevant authority. See Objection at 5-6. In arguing
simply that a complaint should be dismissed where the
exhibits plainly contradict the allegations, Countryside
ignores the legal authority cited by the Magistrate Judge in
finding no such contradiction in the Complaint before the
is a right which inures to one who discharges a duty owed by
him, but which, as between himself and another, should have
been discharged by the other and is allowable only where the
[w]hole fault is in the one against whom indemnity is
sought.” Houdaille Indus., Inc. v. Edwards,
374 So.2d 490, 492-93 (Fla. 1979) (citation omitted).
practice, indemnification “shifts the entire loss from
one who, although without active negligence or fault, has
been obligated to pay, because of some vicarious,
constructive, derivative, or technical liability, to another
who should bear the costs because it was the latter's
wrongdoing for which the former is held liable.”
Id. at 493 (citation omitted). Accordingly:
To state a claim for common law indemnity, a party must
allege that he is without fault, that another party is at
fault, and that a special relationship between the two
parties makes the party seeking indemnification vicariously,
constructively, derivatively, or technically liable for the
acts or omissions of the other party.
Tsafatinos v. Family Dollar Stores of Fla., Inc.,
116 So.3d 576, 581 (Fla. 2d DCA 2013); see also Dade
Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 641
(Fla. 1999) (internal citations omitted).
Underlying Complaint, Melissa Clodfelter asserted two claims
against Hull Storey based on its negligent maintenance of the
sidewalk (Count I) and negligent hiring and retention of an
independent contractor to maintain the premises (Count II).
See Underlying Complaint ¶¶10-23.
Additionally, on June 22, 2016, the state court entered the
Final Judgment against Hull Storey in the amount of $775,
963.37. See Final Judgment. In the Objection,
Countryside contends that “[t]he Final Judgment
represents direct fault on Hull Storey because there is no
allegation of vicarious, constructive, derivative or
technical liability on Hull Storey in the Clodfelter
[Underlying] Complaint.” See Objection at
However, Countryside fails to recognize that in the
Underlying Complaint, Clodfelter alleged the possibility of
Hull Storey's passive ...