Opinion
CASE NO. 8:11-CIV-852-T-17-TBM
02-08-2012
SALVADOR DIAZ-VERSON, JR., Plaintiff, v. AFLAC INCORPORATED, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the report and recommendation (R&R) issued by Magistrate Judge Thomas B. McCoun III on January 11, 2012 (Docket No. 22). The magistrate judge recommended that the Court grant the pending motion and supplemental motion to dismiss, based on the lack of personal jurisdiction and improper venue, and, further, that the Court close the case, with each party to bear its own fees and costs.
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 plaintiff filed objections to the report and recommendation (Docket Nos. 24-25) and the defendant responded thereto (Docket No. 28).
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 the response of the defendant to the objections, the response is incorporated by reference herein. The Court finds that there is neither personal jurisdiction as to the defendant under the circumstances of this case, nor, is the Middle District of Florida the appropriate venue for this case. The Court also finds that dismissal rather than transfer is appropriate for the reasons stated by the magistrate judge in the report and recommendation. Accordingly, it is
ORDERED that the report and recommendation, January 11, 2012 (Docket No. 22) be adopted and incorporated by reference; the objections be overruled; and the motion to dismiss and supplemental motion to dismiss (Docket Nos. 5 and 13) be granted. The Clerk of Court is directed to enter judgment for the defendant and against the plaintiff, to close the case and terminate any pending motions.
DONE and ORDERED in Chambers, in Tampa, Florida, this 8th day of February, 2010.
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ELIZABETH A. KOVACHEVIGH
UNITED STATES DISTRICT JUDGE
Copies to:
All parties and counsel of record
Assigned Magistrate Judge