COURT REFUSES TO DISMISS COMPLAINT AGAINST INDIVIDUAL.

                    UNITED STATES DISTRICT COURT

[1] The Motion to Strike Plaintiff's Opposition to Defendant Franklin's Motion for Summary Judgment Due to Fraud and Misrepresentation (Doc. #153), filed June 13, 2000, is DENIED. Defendants state no legally sufficient reason to strike Plaintiff's pleading.

[2] DONE AND ORDERED at Fort Myers, Florida, this 31st day of August, 2000.

                                   John E. Steele

ORDER

[3] This matter is before the Court for consideration of the Magistrate Judge's Report and Recommendation (Doc. #147) recommending disposition of a number of pending motions. Defendants filed a Victim/Witnesses Objection to Magistrate's Report and Recommendation (Doc. #154) and Plaintiff filed a Response (Doc. #165) to the objections.

[4] 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. 28 U.S.C. section 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified prosed [sic] findings or recommendations to which objection is made." 28 U.S.C. section 636(b)(1)(C). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. by Ernest S. v. State Bd. Of Educ. Of Georgia, 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R.Rep. No. 94-1609, 94th Cong., 2d Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. section 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F. 3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994) (Table).

[5] After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to the matters to which legal objections were filed, the Court resolves the pending motions as follows:

1. Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. #48) refers to the original Complaint. As the magistrate judge correctly found, plaintiff filed a First Amended Complaint (Doc. #54A) which is now the operative pleading. Accordingly, the Court accepts the magistrate judge's recommendation and overrules the objections. Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. #48) will be DENIED as MOOT.

2. The magistrate judge recommends that defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. #57) be denied. The magistrate judge accurately stated the controlling law and properly analyzed the allegations of the Amended Complaint. Accordingly, the Court accepts the magistrate judge's recommendation and overrules the objections. Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. #57) will be DENIED.

3. The magistrate judge recommends that defendants' Motion to Dismiss Plaintiff's Case For Failure to Cooperate with Discovery (Doc. #77) be denied. After reviewing the file, the Court finds that the magistrate judge correctly found that plaintiff was cooperating with discovery. Accordingly, the Court accepts the magistrate judge's recommendation and overrules the objections. Defendants' Motion to Dismiss Plaintiff's Case for Failure to Cooperate with Discovery (Doc. #77) will be DENIED.

4. The magistrate judge recommends that defendants' Motion to Dismiss (Doc. #81) be denied. The Court concurs with the magistrate judge's findings that the Amended Complaint adequately alleges that defendants are debtors and plaintiff is a creditor, and that the United States is not subject to state statutes of limitations. Accordingly, the Court accepts the magistrate judge's recommendation and overrules the objections. Defendants' Motion to Dismiss (Doc. #81) will be DENIED.

5. The magistrate judge recommends that the Motion by the United States to Strike Motion by Defendant Lawrence Franklin to Strike the Application for Default Judgment as to P & L Trust (Doc. #100) be granted and that Defendant Lawrence Franklin Motion to Strike the Application for Default Judgment as to P & L Trust (Doc. #96) be denied. The Court agrees with the magistrate judge that Mr. Franklin cannot represent the P & L Trust. Accordingly, the Court accepts the magistrate judge's recommendation and overrules the objections. The Motion by the United States to Strike Motion by Defendant Lawrence Franklin to Strike the Application for Default Judgment as to P & L Trust (Doc. #100) will be GRANTED, and Defendant Lawrence Franklin's Motion to Strike the Application for Default Judgment as to P & L Trust (Doc. #96) will be STRICKEN. The motion (Doc. #96) shall remain in the file for record-keeping purposes only.

6. The magistrate judge recommends that six motions to strike (Docs. #98, 99, 106, 107, 131, and 132) be denied because defendants are not permitted to represent other persons or entities and cannot file motions on their behalf. The Court agrees. Accordingly, the Court accepts the magistrate judge's recommendations and overrules the objections. Defendants' Motion to Strike Application for Default Judgment Against Defendant Ray Riano as Trustee (Doc. #98) will be DENIED; Defendants' Motion to Strike Application for Default Judgment Against Defendant Nationsbank (Doc. #99) will be DENIED; Defendants' Motion to Set Aside Entry of Default Against P & L Trust and Ray Riano (Doc. #106) will be DENIED; Defendants' Motion to Strike Application for Default Judgment Against A.J. Anderson (Doc. #107) will be DENIED; Defendants' Motion to Strike Plaintiff's Motion for Default as to Nationsbank Due to Fraud (Doc. #131) will be denied; and Defendants' Motion to Strike Plaintiff's Motion for Default Judgment as to P & L Trust For Fraud (Doc. #132) will be DENIED.

7. The magistrate judge recommends that plaintiff's Motion for Default Judgment as to Defendant Nationsbank, N.A. (Doc. #111) and Motion for Default Judgment as to Defendant P & L Trust (Doc. #113) be granted. As the magistrate judge found, both entities were properly served and failed to file any documents in this case. Accordingly, the Court accepts the magistrate judge's recommendations and overrules the objections. Judgment shall enter finding that Nationsbank, N.A. and the P & L Trust have no lien right, title or interest in the real property with the following legal description: Lot 5, Block 29, FORT MYERS VILLAS, Unit 2-B, a subdivision according to the plat or map thereof as recorded in Plat Book 12 at page 30, of the Public Records of Lee County, Florida. The Clerk of the Court shall not file this judgment until the conclusion of the case.

8. The magistrate judge recommends that defendants' Motion to Dismiss for Failure to State a Claim (Doc. #117) be denied. The Court finds that the magistrate judge is correct as a matter of law. Accordingly, the Court accepts the magistrate judge's recommendations and overrules the objections. Defendants' Motion to Dismiss for Failure to State a Claim (Doc. #117) will be DENIED.

9. The magistrate judge recommends that defendants' Motion to Dismiss Plaintiffs' Action Due to Erroneous Assessments and Tax Liens (Doc. #118) be denied. The Court agrees with the findings of the magistrate judge, and accordingly accepts the magistrate judge's recommendations and overrules the objections. Defendants' Motion to Dismiss Plaintiffs' Action Due to Erroneous Assessments and Tax Liens (Doc. #118) will be DENIED.

10. The magistrate further recommends that defendants be precluded from filing additional motions to dismiss and be directed to file an Answer to the Amended Complaint. The Court will accept these recommendations because defendants have had more than an adequate opportunity to file motions to dismiss, all such motions have been denied, and an Answer is required.

[6] Accordingly, it is now

[7] ORDERED:

1. The Report and Recommendation (Doc. #147) is ACCEPTED.

2. Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. #48) is DENIED as MOOT.

3. Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. #57) is DENIED.

4. Defendants' Motion to Dismiss Plaintiff's Case for Failure to Cooperate with Discovery (Doc. #77) is DENIED.

5. Defendants' Motion to Dismiss (Doc. #81) is DENIED.

6. The Motion by the United States to Strike Motion by Defendant Lawrence Franklin to Strike the Application for Default Judgment as to P & L Trust (Doc. #100) is GRANTED.

7. Defendant Lawrence Franklin Motion to Strike the Application for Default Judgment as to P & L Trust (Doc. #96) is STRICKEN. The motion shall remain in the file for record-keeping purposes only.

8. Defendants' Motion to Strike Application for Default Judgment Against Defendant Ray Riano as Trustee (Doc. #98) is DENIED.

9. Defendants' Motion to Strike Application for Default Judgment Against Defendant Nationsbank (Doc. #99) is DENIED.

10. Defendants' Motion to Set Aside Entry of Default Against P & L Trust and Ray Riano (Doc. #106) is DENIED.

11. Defendants' Motion to Strike Application for Default Judgment Against A.J. Anderson (Doc. #107) is DENIED.

12. Defendants Motion to Strike Plaintiff's Motion for Default as to Nationsbank Due to Fraud (Doc. #131) is DENIED.

13. Defendants' Motion to Strike Plaintiff's Motion for Default Judgment as to P & L Trust For Fraud (Doc. #132) is DENIED.

14. Plaintiff's Motion for Default Judgment as to Defendant Nationsbank, N.A. (Doc. #111) and Motion for Default Judgment as to Defendant P & L Trust (Doc. #113) are GRANTED. Judgment shall enter finding that Nationsbank, N.A. and the P & L Trust have no lien right, title or interest in the real property with the following legal description: Lot 5, Block 29, FORT MYERS VILLAS, Unit 2-B, a subdivision according to the plat or map thereof as recorded in Plat Book 12 at page 30, of the Public Records of Lee County, Florida. The Clerk of the Court shall not enter or file this judgment until the conclusion of the case.

15. Defendants' Motion to Dismiss for Failure to State a Claim (Doc. #117) is DENIED.

16. Defendants' Motion to Dismiss Plaintiffs' Action Due to Erroneous Assessments and Tax Liens (Doc. #118) is DENIED.

17. Defendants are precluded from filing additional motions to dismiss. Defendants shall file an Answer to the Amended Complaint within TEN (10) DAYS of this order. Failure to do so may result in the entry of a judgment against defendants.

[8] DONE AND ORDERED at Fort Myers, Florida, this 31st day of August, 2000.

                                   John E. Steele