UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO. 20-80922-CIV-CANNON/Reinhart

ROBERT EBY,

Plaintiff,

v.

ERIC LEVINE,

Defendant.

____________________________________________/

ERIC LEVINE,

Counter-Claimant,

v.

ROBERT EBY, 

JAY SILVER, 

C.S.L.L. REST. CORP., and 

LUNCHEONETTE MANAGEMENT CORP., 

Counter-Defendants,

____________________________________________/

ORDER ACCEPTING WITH CLARIFICATIONS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

THIS CAUSE comes before the Court upon Magistrate Judge Bruce Reinhart’s Report 

and Recommendation (“Report”) [ECF No. 106], entered on October 18, 2021. The Report 

recommends that Defendant/Counter-Claimant Eric Levine’s Motion for Partial Summary 

Judgment [ECF No. 76] be denied, and that Plaintiff/Counter-Defendants’ Motion for Partial 

Summary Judgment be granted in part and denied in part [ECF No. 79]. Specifically, the Report 

recommends that the declaratory judgment requested in Count II of Complaint [ECF No. 1] be 

entered, and that Counts III and V of the Amended Counterclaims [ECF No. 29] be dismissed with 

prejudice. On November 1, 2021, Plaintiff and Counter-Defendants filed objections to the Report 

[ECF No. 108], as did Defendant/Counter-Claimant Levine [ECF No. 109]. Both sides filed a 

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response in opposition to the other side’s objections [ECF Nos. 111–12]. The Court has carefully 

reviewed the Report, the parties’ objections and responses, the entire record, and the applicable 

law. In light of that review, the Court ACCEPTS the Report but offers the following 

supplementary analysis in response to Defendants’ objections.

LEGAL STANDARD

To challenge the findings and recommendations of a magistrate judge, a party must file 

specific written objections identifying the portions of the proposed findings and recommendation 

to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822 (11th 

Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court reviews 

de novo those portions of the report to which objection is made and may accept, reject, or modify 

in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. 

§ 636(b)(1). To the extent a party fails to object to parts of the magistrate judge’s report, the Court 

may accept the recommendation so long as there is no clear error on the face of the record. Macort, 

208 F. App’x at 784. Legal conclusions are reviewed de novo, even in the absence of an objection. 

See LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010); Cooper-Houston v. S. Ry. Co., 37 

F.3d 603, 604 (11th Cir. 1994). 

A party may obtain summary judgment “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). An issue is genuine if “a reasonable trier of fact could return judgment 

for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 

1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). 

A fact is material if it “would affect the outcome of the suit under the governing law.” Id. 

(quoting Anderson, 477 U.S. at 247–48). The Court views the facts in the light most favorable 

to the non-moving party and draws all reasonable inferences in its favor. See Davis v. Williams, 

451 F.3d 759, 763 (11th Cir. 2006). However, material facts set forth in the movant’s statement 

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of facts and supported by record evidence are deemed admitted if not controverted by the 

opposing party. S.D. Fla. L. R. 56.1(b).

DISCUSSION

I. Defendant/Counter-Claimant Levine’s Objection to the Report

Defendant/Counter-Claimant Levine’s sole objection to the Report is that the declaratory 

judgment requested in Count II of Complaint [ECF No. 1] should not be entered. Specifically, 

Levine takes issue with the Report’s invocation of the “law of the case” doctrine in deciding that 

the Stock Purchase Agreement did not require Counter-Defendants to draw on Levine’s line of 

credit each month [see ECF No. 109 pp. 1–4; ECF No. 106 pp. 20–22]. Specifically, Levine 

argues that the law of the case doctrine is inapplicable, because the Report relies on an 

interpretation of the Stock Purchase Agreement embraced by an earlier district court order in this 

case [ECF No. 36] rather than pursuant to a prior appellate ruling [ECF No. 109 p. 2]. Although 

there is doubt about the Report’s reliance on the law of the case doctrine as a basis to grant 

summary judgment on Count II of the Complaint,1 summary judgment remains warranted on that 

count based on the plain text of the Stock Purchase Agreement. As Judge Dimitrouleas properly 

concluded in his Order granting in part and denying in part Counter-Defendants’ motion to dismiss 

Levine’s amended counterclaims, “[t]he unambiguous language of Section 8 [of the Stock 

Purchase Agreement] does not obligate or require Eby or Silver to draw on Levine’s line of credit 

each month. Instead . . . Levine is required to advance the line of credit should Eby or Silver 

choose to make such request” [ECF No. 36 p. 5 (referencing ECF No. 1-1 ¶ 8)]. That determination 

remains correct as a matter of contract interpretation and does not warrant reconsideration. Nor 

does Levine’s generalized claim about a subsequent oral modification of that unambiguous 

1 see Fabre v. Bank of Am. Bank, NA, 523 F. App’x 661, 664 (11th Cir. 2013) (“The law of the 

case doctrine generally precludes a court from reexamining issues decided upon an earlier appeal 

of the same case.” (citing Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th 

Cir. 2005)).

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contractual language [ECF No. 109 p. 3] raise a genuine issue of material fact precluding summary 

judgment on Count II of the Complaint. 

II. Plaintiff/Counter-Defendants’ Objections to the Report

Plaintiff and Counter-Defendants object to: (1) the Report’s conclusion that the Consulting 

Agreement has a definite duration and thus is not terminable at will [ECF No. 108 pp. 3–6]; 

(2) the Report’s conclusion that a genuine issue of material fact exists as to whether Levine 

breached his confidentiality obligations [ECF No. 108 pp. 7–13]; and (3) the Report’s lack of 

discussion of the terminable for-cause issue concerning Levine’s personal use of the office 

computer [ECF No. 108 pp. 13–15]. 

The Court agrees with the Report’s conclusion that the Consulting Agreement has a definite 

duration. The Consulting Agreement specifies that it “will remain in place and can only be 

terminated in the event of any of the following occurrences: [(1)] the restaurant . . . ceases to do 

business at its current location (or at any other location in the New York Tri-State area to which 

the Corporations may relocate said Business) as an EJ’s Luncheonette[,] [or] [(2)] the date on 

which the Business is sold to a bona fide unrelated third (3rd) party . . . .” [ECF No. 1-1 p. 26]. 

Those two contemplated events establish a sufficiently definite period of duration that “can be 

inferred from the nature of [the] contract and the circumstances surrounding its execution,” and, 

accordingly, the Court “give[s] effect to the manifest intent of the parties” by recognizing that the 

Consulting Agreement is not terminable at will. City of Homestead v. Beard, 600 So. 2d 450, 453 

(Fla. 1992).

The Court also agrees with the Report’s conclusion that a genuine issue of material fact 

exists as to whether Levine breached his contractual obligations. Levine’s deposition testimony 

that he was given permission by Eby to access the business records and computer establishes a 

genuine issue of material fact as to whether he breached his confidentiality obligations 

[ECF No. 80-1 pp. 166:6–168:8, 182:20–183:14]. Thus, as the Report recommends, a jury must 

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determine what Levine was doing in the apartment in January 2020 and whether his conduct 

violated the parties’ agreements [ECF No. 106 p. 19]. For the same reasons, Counter-Defendants 

are not entitled to summary judgment on the related issue of Levine’s personal use of the office 

computer. 

CONCLUSION

Following a de novo review of the Report’s legal conclusions and of the portions of the 

Report to which an objection has been made, the Court hereby ACCEPTS the Report with the 

clarifications contained in this Order and rules as follows:

1. Defendant/Counter-Claimant Levine’s Motion for Partial Summary Judgment 

[ECF No. 76] is DENIED.

2. Plaintiff/Counter-Defendants’ Motion for Partial Summary Judgment [ECF No. 79] is 

GRANTED IN PART AND DENIED IN PART. 

a) Following resolution of all remaining claims in this action, a declaratory judgment 

shall be entered in favor of Plaintiff/Counter-Defendant Eby on Count II of the 

Complaint [ECF No. 1 pp. 8–12]. 

b) Counts III and V of the Amended Counterclaims [ECF No. 29 pp. 14–16] are 

hereby DISMISSED WITH PREJUDICE.

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 5th day of January 

2022.

 _________________________________

 AILEEN M. CANNON

 UNITED STATES DISTRICT JUDGE

cc: counsel of record

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