UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-22254-GAYLES/OTAZO-REYES

EDGINA T. HENDRIX-SMITH,

Plaintiff,

v.

SANTANDER CONSUMER USA, and

PRA RECEIVABLES MANAGEMENT, 

LLC, d/b/a Portfolio Recovery,

Defendants.

______________________________________/

ORDER

THIS CAUSE comes before the Court on Magistrate Judge Alicia M. Otazo-Reyes’s 

Report and Recommendation (the “Report”) [ECF No. 50] regarding Defendant Santander 

Consumer USA’s Motion to Dismiss Plaintiff’s Complaint [ECF No. 8] and Defendant Portfolio 

Receivables Management, LLC’s Motion to Dismiss Complaint [ECF No. 10] (collectively, the 

“Motions”). On June 1, 2020, Plaintiff Edgina T. Hendrix-Smith filed a two-count Complaint 

against Defendants for alleged violations of: (1) the Fair Credit Reporting Act (“FCRA”) and the 

Fair Debt Collection Practices Act (“FDCPA”) (Count I) and (2) the Federal Trade Commission 

Act (“FTCA”) (Count II). [ECF No. 1]. On June 18, 2020, Defendants separately filed their 

Motions. [ECF Nos. 8 & 10]. On October 7, 2020, the Court referred this case to Judge 

Otazo-Reyes, 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. 43]. On February 

16, 2021, Judge Otazo-Reyes issued her Report recommending that the Motions be granted. [ECF 

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No. 50]. The Report recommends that Plaintiff’s FCRA and FTCA claims be dismissed with 

prejudice, and Plaintiff’s FDCPA claim be dismissed without prejudice. Id. at 15.

On February 23, 2021, prior to the objection period passing, Plaintiff filed a Notice of 

Interlocutory Appeal as to Judge Otazo-Reyes’s Omnibus Order. [ECF No. 54]. On April 26, 2021, 

the United States Court of Appeals for the Eleventh Circuit granted Defendant Santander 

Consumer USA’s motion to dismiss the appeal for lack of jurisdiction, noting that the Eleventh 

Circuit “lack[ed] jurisdiction because the appeal is not taken from an appealable final order, as the 

magistrate judge’s [Report and Recommendation] has not been adopted by the district court.” See 

Hendrix-Smith v. Santander Consumer USA, No. 21-10571 (11th Cir. Apr. 26, 2021). On May 7, 

2021, the Court lifted the stay and re-opened this matter, providing the parties until May 13, 2021, 

to file any objections to the Report. [ECF No. 61]. No objections were timely filed.

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 review of the record for clear error, the Court agrees with Judge 

Otazo-Reyes’s well-reasoned analysis and conclusion that the Motions should be granted.

Accordingly, it is ORDERED AND ADJUDGED as follows:

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1. Judge Alicia M. Otazo-Reyes’s Report and Recommendation, [ECF No. 50], is 

AFFIRMED AND ADOPTED and incorporated into this Order by reference.

2. Defendant Santander Consumer USA’s Motion to Dismiss Plaintiff’s Complaint, 

[ECF No. 8], is GRANTED.

3. Defendant Portfolio Receivables Management, LLC’s Motion to Dismiss 

Complaint, [ECF No. 10], is GRANTED.

4. Plaintiff’s Fair Credit Reporting Act and Federal Trade Commission Act claims, 

[ECF No. 1], are DISMISSED with prejudice.

5. Plaintiff’s Fair Debt Collection Practices Act claim, [ECF No. 1], is DISMISSED 

without prejudice.

6. Plaintiff may request leave to file an amended complaint as to the Fair Debt 

Collection Practices Act claim on or before June 7, 2021. Failure to do so will 

result in the Court dismissing this action with prejudice.

1

7. This case is CLOSED for administrative purposes.

DONE AND ORDERED in Chambers in Miami, Florida, this 17th day of May, 2021.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

1 If Plaintiff wishes to amend her Complaint, she must request leave to file an amended complaint in a properly filed 

motion before the Court. Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file 

an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.” 

(citation omitted)); see also Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (per curiam) (stating that “[f]iling a 

motion is the proper method to request leave to amend a complaint,” and in moving for leave to amend, a plaintiff 

must comply with Federal Rule of Civil Procedure 7(b) by either “set[ting] forth the substance of the proposed 

amendment or attach[ing] a copy of the proposed amendment”).

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