United States District Court, M.D. Florida, Jacksonville Division
Morales Howard, United States Disrict Judge.
CAUSE is before the Court on the Report and
Recommendation (Doc. 14; Report), entered by the Honorable
James R. Klindt, United States Magistrate Judge, on January
23, 2018. In the Report, Magistrate Judge Klindt recommends
that Defendants' Motion to Dismiss Complaint (Doc. 5;
Motion), filed on April 25, 2017, be granted, in part, and
denied, in part. See Report at 23. Specifically,
Judge Klindt recommends that the Court dismiss Counts I, III
and V in their entirety, and dismiss the claims in Counts II
and IV to the extent Plaintiffs assert these claims against
Defendants Mahendra F. Doshi and Ryan K. Burress.
Id. In all other respects, Judge Klindt recommends
that the Court deny the Motion. Id. Additionally,
Judge Klindt recommends that Plaintiffs be permitted to amend
their complaint. Id. The parties have failed to file
objections to the Report, and the time for doing so has now
Court “may accept, reject, or modify, in whole or in
part, the finding or recommendations by the magistrate
judge.” 28 U.S.C. § 636(b). 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).
independent review of the file and for the reasons stated in
the Magistrate Judge's Report, the Court will accept and
adopt the legal and factual conclusions recommended by the
Magistrate Judge. In doing so, the Court seeks to clarify one
matter. In the Complaint (Doc. 1), Plaintiffs allege that
Cagle Road Land LLC (Cagle Road) “is named as a
Defendant because the relief sought involves the rescission
of the sale of Cagle Road.” See Complaint
¶7. However, “[a]lthough Florida's courts have
muddied the waters by confusing the law of remedies with
underlying causes of action, a claim for
‘rescission' is well-recognized under Florida
law.” Ahern v. Fid. Nat'l Title Ins. Co.,
664 F.Supp.2d 1224, 1229 (M.D. Fla. 2009) (citing Billian
v. Mobil Corp., 710 So.2d 984, 991 (Fla. 4th DCA 1998)
and Crown Ice Mach. Leasing Co. v. Sam Senter Farms,
Inc., 174 So.2d 614, 617 (Fla. 2d DCA 1965)); see
also Bland v. Freightliner LLC, 206 F.Supp.2d 1202, 1206
(M.D Fla. Apr. 15, 2002); but see Lowy v. German Creek
Resorts, LLC, No. 5:07-cv-187/RS/MD, 2008 WL 725119, at
*2 (N.D. Fla. Mar. 17, 2008) (“Rescission is not a
cause of action, but an available remedy if the Plaintiff is
successful on another count.”).Despite this, in the
Complaint, Plaintiffs do not state an independent cause of
action for rescission. See generally Complaint.
Instead, in the wherefore clauses asserted at the conclusion
of Plaintiffs' claims for fraudulent misrepresentation
(Count I), fraudulent concealment (Count II), negligent
misrepresentation (Count III), and breach of fiduciary duty
(Count IV), Plaintiffs seek damages, “or alternatively,
the rescission of the Agreement.” See
Complaint at 7, 8, 10-11.
event Plaintiffs wish to pursue a cause of action for
rescission, they would be required to plead such a claim,
which under Florida law requires that a party allege:
(1) The character or relationship of the parties; (2) The
making of the contract; (3) The existence of fraud, mutual
mistake, false representations, impossibility of performance,
or other ground for rescission or cancellation; (4) That the
party seeking rescission has rescinded the contract and
notified the other party to the contract of such
rescission[;] (5) If the moving party has received benefits
from the contract, he should further allege an offer to
restore these benefits to the party furnishing them, if
restoration is possible[;] [and] (6) Lastly, that the moving
party has no adequate remedy at law.
Ahern, 664 F.Supp.2d at 1229 (quoting Crown Ice
Mach. Leasing Co., 174 So.2d at 617); see also
Barber v. Am.'s Wholesale Lender, No.
8:12-cv-1124-T-27TBM, 2013 WL 1149316, at *3 (M.D. Fla. Mar.
19, 2013) (dismissing a claim for rescission due to the
plaintiff's failure to allege facts sufficient to state a
cause of action for rescission); Saittiewhaite v. Kula
& Samson, LLP, No. 12-24178-CIV-ALTONAGA/Simonton,
2013 WL 12091098, at *6 (S.D. Fla. Feb. 25, 2013) (same);
Chaney v. Crystal Beach Cap., LLC, No.
8:10-cv-1056-T-30TGW, 2011 WL 17638, at *4 (M.D. Fla. Jan. 4,
2011) (same); Moran v. Crystal Beach Cap.,
LLC, No. 8:10-cv-1037-T-30AEP, 2011 WL 17637, at **3-4
(M.D. Fla. Jan. 4, 2011) (same). Plaintiffs do not appear to
have attempted to allege such a claim here. Because neither
party addressed this pleading irregularity, the Court will
take no action other than draw it to the parties'
attention to be addressed in whatever manner they deem
appropriate. Accordingly, it is hereby
Magistrate Judge's Report and Recommendation (Doc. 14) is
ADOPTED as the opinion of the Court.
Defendants' Motion to Dismiss Complaint (Doc. 5) is
GRANTED, in part, and DENIED, in part.
a. The Motion is granted to the extent that Counts I, III,
and V are DISMISSED without prejudice, and
Counts II and IV are DISMISSED without
prejudice to the extent they are brought against
Defendants Mahendra F. Doshi, Ryan K. Burress, and Cagle Road
b. The Motion is denied in all other respects.
Plaintiffs wish to file a motion to amend the Complaint, they
must file a properly supported motion for leave no later than
March 2, 2018. Before filing any such motion
Plaintiffs must confer with opposing counsel in accordance
with Rule 3.01(g) of the Local Rules of the United States
District Court for the Middle District of Florida.