United States District Court, N.D. Alabama, Southern Division
ANDREWS SPORTS MEDICINE & ORTHOPAEDIC CENTER, LLC, Plaintiff/Counterclaim Defendant,
JOHN WARD CORY, M.D., Defendant/Counterclaim Plaintiff/Third-Party Plaintiff,
JAMES ANDREWS, M.D., E. LYLE CAIN, M.D., JEFFREY R. DUGAS, M.D., STEVEN R. NICHOLS, M.D., Third-Party Defendants.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Andrews Sports Medicine & Orthopaedic Center, LLC ("ASMOC") initiated this action against Defendant John Ward Cory, M.D. ("Dr. Cory") alleging state law claims for breach of an employment agreement, breach of a credit agreement, and unjust enrichment. (Doc. 1). Dr. Cory asserts counterclaims against ASMOC and third-party claims against James R. Andrews, M.D. ("Dr. Andrews"), E. Lyle Cain, M.D. ("Dr. Cain"), Jeffry R. Dugas, M.D. ("Dr. Dugas"), and Steven R. Nichols, M.D. ("Dr. Nichols") (collectively referred to as the "ASMOC Doctors") seeking a declaratory judgment and alleging state law claims for fraudulent inducement, promissory fraud, breach of contract, breach of implied contract, intentional interference with contractual and/or business relationships, promissory estoppel, equitable estoppel, and conspiracy. (Doc. 17). ASMOC and the ASMOC Doctors (collectively, "Movants") move to dismiss the counterclaims and third-party claims asserted against them. (Doc. 18). Dr. Cory has submitted a response in opposition to the motion. (Doc. 19).
II. PROCEDURAL POSTURE
On September 16, 2014, the magistrate judge entered a Report and Recommendation ("R&R") recommending that the motion to dismiss be DENIED as to Counts I-V and VII-IX and GRANTED as to Count VI. (Doc. 25). In that document, the parties were specifically of their right to object within fourteen days from the date of the R&R. ( Id. at 22.). No objections were filed and the time to do so has passed. Therefore, the R&R (doc. 25) and motion to dismiss (doc. 18) are before the undersigned.
III. APPLICABLE STANDARDS
A. District Court Review of Report and Recommendation
After conducting a "careful and complete" review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other grounds by Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R&R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed.App'x. 781, 784 (11th Cir. 2006).
"Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) ("While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or abandoned by his failure to raise it on appeal to the district court.").
B. Sufficiency of the Pleadings
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Fraud claims must be pled more specifically pursuant to Federal Rule of Civil Procedure 9(b): "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." However, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." FED. R. CIV. P. 9(b). As the Eleventh Circuit has explained,
Rule 9(b) is satisfied if the complaint sets forth "(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which ...