ACHERON PORTFOLIO TRUST

v.

MUKAMAL

S.D. Fla. | 2021-05-24

No. 1:20-cv-25025

District Court, S.D. Florida (2021)

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Holding

The court adopted the magistrate judge's recommendation to grant the motion to dismiss the petition to compel arbitration.

Facts & Procedural History

Plaintiffs filed a petition to compel arbitration. Defendant moved to dismiss the petition. A magistrate judge recommended granting the motion, and th…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

De Novo Review Of Magistrate Judge'S Report Petition To Compel Arbitration Magistrate Judge'S Report And Recommendation De Novo Review

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Opinion of the Court

BARRY MUKAMAL, as Trustee of the Mutual Benefits Keep Policy Trust,

Defendant. ______________________________________/

ORDER1

THIS CAUSE comes before the Court on Magistrate Judge Jared M. Strauss’s Report and Recommendation (the “Report”) [ECF No. 32] regarding Defendant Barry Mukamal’s Motion to Dismiss Petition to Compel Arbitration (the “Motion”) [ECF No. 13].

On December 9, 2020, Plaintiffs Acheron Portfolio Trust, Avernus Portfolio Trust, Lorenzo Tonti 2006 Trust, Styx Portfolio Trust, and Acheron Capital, Ltd. filed their Petition to Compel Arbitration (the “Petition”) against Defendant. [ECF No. 1].

On January 4, 2021, Defendant filed his Motion seeking to dismiss the Petition. [ECF No. 13].

On January 14, 2021, the Court referred this case to Judge Strauss, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pre-trial, non-dispositive matters and a report and recommendation on all dispositive matters. [ECF No. 17].

On April 6,

This is because “[i]t 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.” Sanchez v. Jones, No. 17-CIV-21911, 2019 WL 8892627, at *1 (S.D. Fla. Apr. 29, 2019) (internal quotation marks omitted) (alternations in original) (quoting Eckenrod, 2012 WL 3614212, at *2); see also Estrada v. FTS USA, LLC, No. 14-CIV-23388, 2018 WL 1811907, at *1 (S.D. Fla. Mar. 16, 2018) (“[I]fthe objections .. . ‘simply rehash or reiterate the original briefs to the magistrate judge,’ . . . that will not suffice to invoke a district court’s de novo review of the magistrate judge’s recommendations.” (citations omitted)).

The Court is unpersuaded by Plaintiffs’ Objections and agrees with Judge Strauss’s wellreasoned Report recommending that the Motion be granted and the Petition be dismissed.

Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Magistrate Judge Jared M. Strauss’s Report and Recommendation, [ECF No. 32], is AFFIRMED AND ADOPTED and incorporated into this Order by reference.

2. Defendant Barry Mukamal’s Motion to Dismiss Petition to Compel Arbitration, [ECF No. 13], is GRANTED.

3. Plaintiffs Acheron Portfolio Trust, Avernus Portfolio Trust, Lorenzo Tonti 2006 Trust, Styx Portfolio Trust, and Acheron Capital, Ltd.’s Petition to Compel Arbitration, [ECF No. 1], is DISMISSED.

4. This case is CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of May, 2021.

Df [...]

UNITED STATES DIST JUDGE

Footnotes

1 Although the parties should more appropriately be referred to as “Petitioners” and “Respondent”, the Court refers to the parties as “Plaintiffs” and “Defendant”—as the parties have referred to themselves—for consistency with the relevant pleadings. 2021, Judge Strauss issued his Report recommending that the Court grant the Motion and dismiss the Petition. [ECF No. 32]. Plaintiffs timely filed objections (the “Objections”), [ECF No. 35], to which Defendant responded. [ECF No. 36]. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objections are made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F. 3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objections are made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Having conducted a de novo review of the record, the Court agrees with Judge Strauss’s well-reasoned analysis and conclusions that the Motion should be granted and the Petition should be dismissed. Plaintiffs’ objections do nothing more than restate and expand on arguments previously made in their pleadings and before Judge Strauss. “[P]arties are not to be afforded a ‘second bite at the apple’ when they file objections to a [report and recommendation].” Marlite, Inc. v. Eckenrod, No. 10-CIV-23641, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors Hourly–Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)).

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Citator

Authorities Cited

United States v. Schultz, 565 F.3d 1353 (11th Cir. 2009)
Liberty Am. Ins. Grp., Inc. v. Westpoint Underwriters, L.L.C., 2001 WL 1850837 (M.D. Fla. 2001)

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