1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-cv-22343-KMM Moore/Louis

JORGE MONTEAGUDO ALBURQUERQUE, 

Plaintiff, 

v.

THE DE MOYA GROUP, INC., 

a Florida Profit Corporation, 

Defendant. 

________________________________________/ 

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT'S OBJECTION TO

REPORT AND RECOMMENDATION

Plaintiff, JORGE MONTEAGUDO ALBURQUERQUE (“Plaintiff”), hereby responds to 

Defendant’s Objection to Report and Recommendation (the “Objection”) [ECF No. 132], 

Magistrate Judge Lauren F. Louis’ February 2

nd

, 2024, Report and Recommendation (“R&R”) 

properly recommends that Defendant’s Rule 11 Sanctions (“Rule 11 Motion”) be denied. As the 

Report’s comprehensive analysis shows, there is no basis for Rule 11, given the absence of any 

competent evidence of intentional misconduct by Plaintiff or his counsel. Accordingly, Plaintiff 

respectfully requests that the Objections be overruled, and the Report adopted by this Court. 

I. Introduction

1. On March 20, 2023, Defendant moved for summary Judgment. After the conclusion of

briefing on the Motion for Summary Judgment but before an Order was entered,

Defendant filed its Rule 11 Motion for Sanctions (ECF No. 58).

2. Following a two-day evidentiary hearing on Defendant’s Rule 11Motion which concluded

on September 12, 2023, Magistrate Judge Lauren F. Louis issued a lengthy Report and

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 1 of 10
2

Recommendations (“R&R) detailing her findings of law and fact. ECF No. 131. Based on 

a thorough analysis of the applicable law, the Magistrate Judge correctly recommended 

Defendant’s Rule 11 Motion be denied. 

3. Defendant filed their Objection to the R&R at 0:00 AM on February 17, 2024 [ECF No. 

132], in which it asks this Court to ignore the facts as adduced by the Magistrate, and

refutes or directly contradicts the Magistrate’s legal conclusions.

4. As explained below, the Magistrate correctly recommended denial of Defendant’s Rule 11 

Motion in its entirety. Defendant’s Objection, much like its initial Motion, is based on 

insinuation and misrepresentations of law and facts and should be overruled and the 

Magistrate’s Report and Recommendation adopted by this Court.

II. Argument

A. Legal Standard. 

Under Federal Rule of Civil Procedure 72, a party may object to and seek review of a 

magistrate judge's report and recommendation. See FED. R. CIV. P. 72(b)(2). The Court 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); Fed. R. Civ. P. 72(b)(3). 

The Court must conduct a de novo review if a party files “a proper, specific objection” to 

a factual finding contained in the report. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 

2006). Absent a timely and proper objection, “‘the court need only satisfy itself that there is no 

clear error on the face of the record in order to accept the recommendation.’” GRACE, Inc. v. City

of Miami, No. 1:22-CV-24066-KMM, 2023 WL 3594310 (S.D. Fla. May 23, 2023), appeal

dismissed, No. 23-11854-D, 2023 WL 5624206 (11th Cir. July 13, 2023)(citing Fed. R. Civ. P. 72(b) 

advisory committee's note to 1983 addition; Lopez v. Berryhill, No. 1:17-CV-24263, 2019 WL 

2254704, at *2 (S.D. Fla. Feb. 26, 2019)). For an objection to be proper, the same must be stated 

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 2 of 10
3

with specificity. Macort, 208 F. App'x at 784. In addition, “a party's objections are improper if they 

expand upon and reframe arguments already made and considered by the magistrate judge, or 

simply disagree with the magistrate judge's conclusions.” GRACE, Inc., Case No. 1:22-CV-24066-

KMM, 2023 WL 3594310 at *1.

B. Response in Opposition to Defendant’s Objections

1. Defendant’s first objection based on the admissibility of evidence 

considered by the Magistrate Judge is insufficient.

As a preliminary manner, Defendant argues – for the first time- that the MDCHR 

investigator’s notes and the undersigned’s testimony regarding Plaintiff’s statements during the 

MDCCHR’s interview constituted inadmissible hearsay. Id. ECF No. 132 at 5. The Defendant

had several opportunities to object to any evidence it deemed inadmissible, and that it believed

should not be considered by the Court, yet Defendant failed to do so. During the evidentiary 

hearing, Defendant agreed to the submission of each of the Exhibits it now contends should not

have been considered by the Court. See Evidentiary Hearing Final Exhibit List without objections

ECF No. 111. Defendant did not object to the admissibility of the evidence it now contends should 

not have been considered by the Court. The MDCHR investigator’s notes were admitted without 

objection at the September 12, 2023, hearing as Plaintiff’s Exhibit 43. See R&R (ECF No. 131 at 

p. 13)(noting “[t]he case file was admitted without objection at the September 12 hearing as 

Plaintiff’s Exhibit 43. It contains a list of Rebuttal Questions from an April 8, 2021 interview of 

Plaintiff”); see also Plaintiff’s Exhibit 24- Police Report dated October 5, 2020, at ECF No. 111-11; 

see also Plaintiff’s Exhibit 43 – Case File, ECF No. 111-16 at 95 to 99. Further, during the 

undersigned’s testimony on September 12, 2023, Defendant did not object to the questions or

testimony of the undersigned regarding Plaintiff’s interview by the MDCCHR’s investigator.

Having failed to raise the Rule 801 objection during the evidentiary hearing, Defendant

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 3 of 10
4

may not raise it now. See United States v. Madruga, 810 F.2d 1010, 1014 (11th Cir. 1987). It is well 

settled that a “district court has discretion to decline to consider a party's argument when that 

argument was not first presented to the magistrate judge.” Williams v. McNeil, 557 F.3d 1287, 1292 

(11th Cir. 2009). Accordingly, the Defendant should not be allowed to raise disputes for the first 

time on the admissibility of evidence that was considered by the Court over five months ago now

that the R&R is not in its favor. 

Plaintiff further contends Defendant’s objection is insufficient, as Defendant proffers no 

argument to support its otherwise conclusory contention that the R&R is not permitted to rely on 

the evidence it now classifies as inadmissible hearsay. This is clearly because the weight of 

precedent cuts against Defendant’s argument. See, e.g., Jensen v. Phillips Screw Co., 546 F.3d 59, 66 

n.5 (“We do not suggest that the rules of evidence necessarily apply to factfinding in the context of 

sanctions. That is not the case.”); Cook v. American S.S. Co., 134 F.3d 771, 775 (6th Cir. 1998) (finding 

the argument that a court violates due process by failing to apply the Federal Rules of Evidence 

when imposing sanctions without merit). Flatly declaring that the court’s reliance on “inadmissible” 

evidence is improper, without reference to or analysis of the supporting authority of its position, 

falls short of a meaningful challenge. See Macort, 208 F. App'x at 784. Accordingly, the objection 

should be rejected. 

Defendant’s contention that the R&R improperly relied on statements contained in the 

MDCHR investigator’s notes and Ms. Saavedra’s testimony to assess the plausibility of Plaintiff’s 

claims and to corroborate witness testimony is unavailing. Rule 11 sanctions could only be assessed 

against Plaintiff and his counsel if they “had actual knowledge that the filing of the papers 

constituted wrongful conduct.” Brown v. Artus, 647 F. Supp. 2d 190, 205 (N.D.N.Y. 2009), Calloway v.

Marvel Ent. Grp., a Div. of Cadence Indus. Corp., 854 F.2d 1452, 1474 (2d Cir. 1988), rev'd in part sub

nom. Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 110 S. Ct. 456, 107 L. Ed. 2d 438 (1989). 

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 4 of 10
5

Here, contrary to Defendant’s contention, the R&R considered the statements in the police 

report, the investigator’s handwritten notes, and the undersigned’s testimony describing Plaintiff’s 

statements to the investigator, only insofar as these statements gave credence to Plaintiff’s 

contention that at the time the amended complaint was filed Plaintiff’s belief that his complaint 

constituted protected activity was genuine and objective. There is no evidence of Plaintiff or his 

counsel having actual knowledge that the filing of the Amended complaint constituted wrongful 

conduct. The R&R's consideration of the statements in this context is permissible, even if these

statements were otherwise considered inadmissible evidence. The R&R did not improperly rely on

these statements to establish that Plaintiff did in fact engaged in protected activity. But rather, the 

R&R properly analyzed the contemporaneous statements of Plaintiff as they were relevant to 

determine what was reasonable to believe at the time the pleading was submitted.” Baker v.

Alderman, 158 F.3d 516, 524 (11th Cir. 1998).

2. Defendant’s objection that the R&R disregards Defendant’s argument 

with respect to Plaintiff having no legal basis is not proper and should be 

overruled.

Defendant’s contention that the R&R is silent on the legal merits of Plaintiff’s claims is false

and unsupported by the record. Rather, Defendant’s second objection is nothing more than 

Defendant’s futile attempt to a “second bite at the apple.” Marlite, Inc. v. Eckenrod, No. 10-23641-

CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012). 

As it has been recognized by this Court, “a party's objections are improper if they expand 

upon and reframe arguments already made and considered by the magistrate judge, or simply 

disagree with the magistrate judge's conclusions.” GRACE, Inc., No. 1:22-CV-24066-KMM, 2023 

WL 3594310, citing Melillo v. United States, No. 17-CV-80489, 2018 WL 4258355, at *1 (S.D. Fla. 

Sept. 6, 2018)).

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 5 of 10
6

Plaintiff notes that the record clearly evidences Defendant presented its contention that Plaintiff’s 

claims were legally deficient during the evidentiary hearing. The record clearly reflects how, during 

the first Evidentiary Hearing, the Court sought clarification from Defendant’s counsel on the basis 

of its Rule 11 Motion. 

THE COURT: I'm going to ask, Mr. Clyne, you to start, with a

laser-focused explanation of what it is that you intend to prove at 

an evidentiary hearing, what fact that you've advanced in your 

motion that's in dispute and requires evidentiary proof that you 

will do and with whom, what witness. Because it's my impression, 

at least, that your motion starts off like it travels on a failure to 

investigate facts and a lack of access to facts -- or evidence, rather 

-- that would have formed a good-faith belief that there was a cause 

of action, but it seems to end up at an absence of legal research. 

So I really -- I got to understand exactly what your theory is before 

you do.

ECF No. 62 at 4:22- 6:10. The Court inquired further and Defendant’s counsel stated: 

MR. CLYNE: I think, when the lawsuit was filed, opposing 

counsel should have done an investigation, looked at the 

statement of determination by the Miami-Dade

Commission of Human Rights, and realized that there was 

not sufficient grounds to bring the suit. They dropped the 

national origin discrimination claim. They kept the 

retaliation claims. The retaliation claim is based on -- the 

first prong is that you engaged in some sort of protected 

activity. After the depositions were taken in this case, as to 

the meeting that was held with regards to the protected 

activity, all of the witnesses, including the plaintiff and the 

two of my clients that were deposed, said that he 

complained that he was told by his supervisor to go to a 

new job site, 874, and that he was disrespected. Right? 

That kernel of evidence, when you had three witnesses all 

saying that all he complained was about disrespect, that is 

not a basis for an unlawful discrimination act. That's not --

disrespect by a supervisor telling you to do something is not 

a violation of Title VII. So the evidence that came into this 

case, even if you say, okay, she had some doubts; let me 

throw my dice and see what I got, when you heard the 

testimony from Chris De Moya, Susan Geraldo, and your 

own client, and all he said in his deposition was "I was 

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 6 of 10
7

disrespected by my supervisor," that doesn't create a Title 

VII claim.

THE COURT: Okay. So it's legally insufficient

MR. CLYNE: It's legally insufficient.

THE COURT: There's not a fact that was alleged in

the absence of a good-faith basis to believe the 

evidence would bear it out.

*** **********************

THE COURT: I think your main argument is, once she 

heard all the evidence, plaintiff's counsel should have 

known, under Eleventh Circuit law, this is not sufficient to 

carry a retaliatory claim of retaliation. I think that's your

primary argument.

MR. CLYNE: Yes.

Id. at 13:18-16:1, (emphasis added). With this understanding the parties agreed to continue

the evidentiary hearing for a later date which was ultimately held on September 12, 2023. After 

the September 12, evidentiary hearing the Court ultimately carefully analyzed and addressed each 

of Defendant’s arguments. Ultimately, the R&R expressly evidences the Court considered

Defendant’s argument and rejected it. The R&R first acknowledged Defendant’s challenge on the 

legal basis as it related to the “protected activity” element of Plaintiff’s claim noting “[t]o the extent 

Defendant asserts lack of a legal basis, it does so on the ground that no case has found retaliation 

on facts as thin as those presented here.” See ECF No. 131 at 10. The R&R then proceeds to set 

out the Court’s analysis, ultimately concluding that the record reflected that there was at least some 

evidentiary basis to support the allegation that Plaintiff made an informal complaint about 

discriminatory treatment in September 2020 and expressly rejecting Defendant’s argument that 

Plaintiff’s complaint was no more than a complaint about disrespect and did not amount to a 

protected activity. ECF No. 131 at 15.

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 7 of 10
8

Similarly, despite Defendant’s assertion to the contrary, the R&R also expressly addresses 

Defendant’s contention that there was no legal basis to support a causal nexus between Plaintiff’s 

complaint and his termination. Citing to Berry v. Crestwood Healthcare LP, the R&R unequivocally 

concludes that at the time the Amended Complaint was filed, the record contained evidence of 

suspicious timing, inconsistencies in the reason for termination, and evidence of Defendant’s failure 

to follow its own disciplinary policy which could properly raise and support a reasonable inference 

of retaliation. See Berry v. Crestwood Healthcare LP, 84 F.4th 1300 (11th Cir. 2023)(noting that

“[w]ithout relying on the McDonnell Douglas framework, an employee may prove retaliation with 

any circumstantial evidence that creates a reasonable inference of retaliatory intent.”)

CONCLUSION

For the foregoing reasons, The Magistrate properly recommended that Defendant’s Motion be

denied. Plaintiff respectfully requests that the recommendation be adopted by this Court, and 

Defendant’s Rule 11 Motion denied. 

Dated: March 1, 2024. Respectfully submitted,

/s/ Nathaly Saavedra 

Nathaly Saavedra, Esq. 

Fla. Bar No. 118315

Email: nathaly@peregonza.com

Juan J. Perez, Esq. 

Fla. Bar No. 115784

Email: juan@peregonza.com

PEREGONZA THE ATTORNEYS, PLLC

5201 Blue Lagoon Drive,

Suite 290, 

Miami, FL 33126

Tel. (786) 650-0202

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 8 of 10
9

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 1, 2024, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 

is being served this day on all counsel of record or pro se parties identified on the attached Service 

List in the manner specified, either via transmission of Notices of Electronic Filing generated by 

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized 

to receive electronically Notices of Electronic Filing.

/s/ Nathaly Saavedra

Nathaly Saavedra, Esq. 

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 9 of 10
10

SERVICE LIST

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:22-cv-22343-KMM Moore/Louis

Nathaly Saavedra, Esq. 

Fla. Bar No. 118315

Email: nathaly@peregonza.com

Juan J. Perez, Esq. 

Fla. Bar No. 115784

Email: juan@peregonza.com

PEREGONZA THE ATTORNEYS, PLLC

5201 Blue Lagoon Drive,

Suite 290, 

Miami, FL 33126

Tel. (786) 650-0202

Fax. (786) 650-0200

Attorneys for Plaintiff

Brian H. Pollock, Esq. (174742)

brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: (305) 230-4884

Counsel for Nathaly Saavedra, Esq. and PereGonza The 

Attorneys

Method of Service: CM/ECF notice

Reginald J. Clyne, Esq.

Florida Bar No. 654302

reginald.clyne@qpwblaw.com

Chanelle Artiles, Esq. 

Florida Bar No. 10006402

chanelle.artiles@qpwblaw.com

Quintairos, Prieto, Wood & Boyer, P.A.

9300 South Dadeland Blvd., 4th Floor

Miami, Florida 33156

Telephone: 305-670-1101

Attorneys for Defendant

Method of Service: CM/ECF notice

Case 1:22-cv-22343-KMM Document 133 Entered on FLSD Docket 03/01/2024 Page 10 of 10