FOX

v.

THE RITZ-CARLTON HOTEL COMPANY, LLC

(1) whether the notice given to Plaintiff was deceptive because of the alleged absence of any notice on at least one menu and the allegedly smaller type and different font used on the notices in comparison to the rest of the text on the menus and bills and (2) whether Plaintiff suffered actual damages and whether those damages were a direct result of Defendant’s failure to adequately disclose the automatic gratuity charges. (Report pp. 26-27). Judge Damian recommends that summary judgment be denied to the extent it is based on the application of Florida’s voluntary payment doctrine because there is a genuine issue of fact as to whether Plaintiff had full knowledge that Defendant included automatic gratuity in his bills when he signed those payments and whether he could amend the charges after he had already signed the bills and left the restaurants. (Report p. 30). Defendant timely filed objections (the “Objections”) [ECF No. 141] to those parts of Judge Damian’s disposition not in its favor. Plaintiff timely filed a response in opposition to Defendant’s objections [ECF No. 143]. District courts must review de novo any part of a magistrate judge’s disposition that has been properly objected to. FED. R. CIV. P. 72(b)(3). When no party has timely objected, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted). Although Rule 72 is silent on the standard of review, the United States Supreme Court has determined Congress’ intent was to require de novo review only when objections are properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” (alterations added)). Because Defendant filed timely objections to parts of Judge Damian’s Report, the Court reviews those parts of Judge Damian’s Report de novo. In its Objections, Defendant argues that Plaintiff lacks standing, that Defendant is entitled to summary judgment under FDUTPA’s safe harbor provision, that Plaintiff cannot prove any element of his claim of traditional violations of the FDUTPA in Count II of the Amended Complaint, and that Defendant is entitled to summary judgment under Florida’s voluntary payment doctrine. (See generally Objections). After conducting a de novo review of the record, Defendant’s objections, Plaintiff’s response to Defendant’s objections, and the relevant legal authorities, the Undersigned finds that the Motion should be granted in part and denied in part. Specifically, the Motion should be denied as to Defendant’s arguments regarding standing, the FDUTPA’s safe harbor provision, Plaintiff’s claims of traditional violations of FDUTPA in Count II of the Amended Complaint, and Florida’s voluntary payment doctrine. The Court finds that there is no clear error as to Judge Damian’s disposition with respect to Count I of the Amended Complaint alleging per se violations of FDUTPA. Accordingly, the Motion should be granted as to Count I of the Case No. 17-24284-Civ-COOKE/Damian

Amended Complaint alleging per se violations of FDUTPA. For the foregoing reasons, it is ORDERED AND ADJUDGED that Judge Damian’s Report [ECF No. 137] is ACCEPTED AND ADOPTED. Accordingly, Defendant’s Motion for Summary Judgment [ECF No. 98] is GRANTED IN PART and DENIED IN PART. DONE AND ORDERED in Miami, Florida this 26th day of September 2022.

KATHLEEN M. WILLIAMS

UNITED STATES DISTRICT JUDGE

for Marcia G. Cooke, United States District Judge ce: Melissa Damian, U.S. Magistrate Judge counsel of record