Opinion
CASE NO. 8:06-CIV-372-T-17-EAJ.
December 20, 2007
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the report and recommendation (R R) issued by Magistrate Judge Elizabeth A. Jenkins on November 28, 2007 (Docket No. 41). The magistrate judge recommended that the Court grant the motion for final judgment (Docket No. 32); deny, without prejudice, the plaintiff's motion for writ of possession (Docket No. 40); allow the plaintiff to move under the admiralty rules and within ten (10) days, for possession of the property at issue; to defer the entry of final default judgment, after granting the motion, pending notification by the plaintiff, within thirty (30) days, as to whether plaintiff has been able to obtain the property at issue; that, thereafter, judgment should be entered in favor of plaintiff, following notification by plaintiff, and against defendant Thomas Butler in the amount of $146,320.00 if plaintiff is unable to recover possession of the vessel's engines and transmissions, or, in the alternative, if the plaintiff recovers possession of those items, then judgment should be entered in favor of the plaintiff and against Thomas Butler in the amount of $69,120.00; and, after the entry of final judgment, award attorney's fees in the amount of $8,575.00 and costs in the amount of $600.28, taxed against Thomas Butler.
Pursuant to Rule 6.02, Rules of the United States District Court for the Middle District of Florida, the parties had ten (10) 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). No timely objections to the report and recommendation have been filed.
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. Accordingly, it is
ORDERED that the report and recommendation, dated November 28, 2007 (Docket No. 41) be adopted and incorporated by reference; the motion for final judgment (Docket No. 32) be granted; the plaintiff's motion for writ of possession (Docket No. 40) be denied without prejudice; the plaintiff is allowed to move under the admiralty rules, within ten (10) days of the date of this order, for possession of the property at issue; the entry of final default judgment is deferred, pending notification by the plaintiff within thirty (30) days as whether plaintiff has been able to obtain the property at issue; following notification by plaintiff judgment will be entered in favor of plaintiff and against defendant Thomas Butler in the amount of $146,320.00 if plaintiff is unable to recover possession of the vessel's engines and transmissions, or, in the alternative, if the plaintiff recovers possession of those items, then judgment will be entered in favor of the plaintiff and against Thomas Butler in the amount of $69,120.00; and, after the entry of final judgment, the plaintiff is awarded attorney's fees in the amount of $8,575.00 and costs in the amount of $600.28, which are to be taxed against Thomas Butler. The Clerk of Court shall close this case at the time the final judgment is entered. DONE and ORDERED in Chambers, in Tampa, Florida.