UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-24177-CIV-DAMIAN/Louis

DAWN INTERNATIONAL LTD., 

Plaintiff, 

vs. 

JACOB FLEISHMAN SALES, INC.,

Defendant. 

___________________________________/ 

ORDER ADOPTING REPORT AND RECOMMENDATIONS [ECF NO. 99] 

AND GRANTING PARTIAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on Magistrate Judge Lauren F. Louis’s Report

and Recommendations, entered on August 24, 2024 [ECF No. 99 (the “Report”)], on 

Plaintiff, Dawn International LTD.’s (“Dawn”), Motion for Summary Judgment, filed on 

January 8, 2024 [ECF No. 58 (“Dawn’s Motion”)], and on Defendant, Jacob Fleishman 

Sales, Inc.’s (“Fleishman”), Motion for Summary Judgment, filed on January 8, 2024 [ECF 

No. 60 (“Fleishman’s Motion”)]. 

THE COURT has reviewed the Report, Dawn’s Motion, Fleishman’s Motion, and 

the pertinent portions of the record (including the parties’ memoranda [ECF Nos. 69, 71, 

74, 76] and statements of fact [ECF Nos. 59, 61, 75]), as well as the parties’ Objections to 

the Report [ECF No. 104], and is otherwise fully advised.

After carefully considering the briefing, Judge Louis issued the Report on August 24, 

2024, recommending that Dawn’s Motion be granted in part and that Fleishman’s Motion

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be denied. See ECF No. 99. The Report summarizes the relevant background and 

procedural history, and therefore, the Court will not set out the background in detail here.

In short, the undisputed facts are that Dawn, through a wholly owned subsidiary, 

supplied thousands of pounds of pork products to Fleishman for years. See id. Fleishman 

alleges that it received a shipment of baby back ribs (in October 2021) that it discovered (in 

May 2022) had significant problems, leading to a series of disputes. See id. Dawn seeks

recovery of the amounts invoiced and delivered but never paid and damages on contracts 

that were ordered but not delivered. Fleishman counterclaims for the amounts paid for pork 

products that failed to conform with quality standards. See id.

Judge Louis recommends that Dawn’s Motion be denied as to its contract claims, on

account of its failure to adduce evidence that contracts were in fact formed. See id. at 11-15, 

18-22. However, Judge Louis recommends that Dawn’s Motion be granted as to Count V of 

its Complaint because Fleishman failed to cite any record evidence on which to reasonably 

conclude that it did not contract to purchase the pork bellies (as opposed to ribs, to which she 

concluded there is a material dispute) at issue therein or that it did not assent to the amounts 

Dawn seeks to charge it. See id. at 15-18. Judge Louis also recommends that Fleishman’s 

Motion be denied in all respects because the undisputed evidence shows that the contracts 

arose between the parties as a result of their conduct—meaning that a factfinder must decide 

if Dawn materially breach the agreement. See id. at 18-22. She further recommends that

Dawn’s Motion be granted as to Count III of Fleishman’s Amended Counterclaim because 

Fleishman failed to rebut Dawn’s argument that simply reselling the goods at issue is not a 

particular purpose as would breach the implied warranty of fitness for a particular purpose. 

See id. at 22-24. Finally, Judge Louis recommends that Dawn’s Motion be granted as to 

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Counts IV & V of the Counterclaim as Dawn made an initial showing that no contract 

existed and no benefit was conferred, and Fleishman made no attempt to maintain these

claims. See id. at 24-25. Neither party filed a substantive objection to the Report,1 and the 

time for doing so has expired. See generally Docket.

When a magistrate judge’s “disposition” has properly been objected to, district courts 

must review the disposition de novo. Fed. R. Civ. P. 72(b)(3). When no party has timely 

objected, however, “the court need only satisfy itself that there is no clear error on the face 

of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory 

committee’s notes (citation omitted). Although Rule 72 itself is silent on the standard of 

review, the Supreme Court has acknowledged Congress’s intent was to only require a de 

novo review where objections have been properly filed, not when neither party objects. See 

Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to 

require district court review of a magistrate [judge]’s factual or legal conclusions, under a de 

novo or any other standard, when neither party objects to those findings.”). 

As discussed above, although Fleishman filed an “objection,” because that

“objection” makes clear that Fleishman does not actually object to any recommendation 

made by Judge Louis, see ECF No. 104, the undersigned will treat the Report as if no 

objections were filed.

1 Fleishman did file an ”Objection” that advised that “[w]hile this pleading is styled an 

Objection to the Report and Recommendations, the Court should be aware that it is the 

Defendant’s position that the Report and Recommendations of the Magistrate are sound 

and should be adopted as the Order of the Court, with one clarification[,]” namely, that the 

Court “not enter final judgment until the amount of the set-off is determined by the Court 

after trial.” [ECF No. 104]. This Court will not be entering final judgment as to any Count 

at this time.

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The undersigned has reviewed the Report, the record, and the applicable law to 

assure herself that no clear error appears on the face of the record. In light of that review, the 

undersigned agrees with the thorough analysis and very well-reasoned recommendations 

stated in Judge Louis’s Report and agrees with Judge Louis’s conclusions. Accordingly, it is

ORDERED AND ADJUDGED that the Report [ECF No. 99] is AFFIRMED 

AND ADOPTED as follows:

1. Dawn’s Motion for Summary Judgment [ECF No. 58] is GRANTED IN 

PART and DENIED IN PART. Summary Judgment is granted as to Count V of Dawn’s 

Complaint (as to pork bellies only), and as to Counts III, IV, and V of Fleishman’s 

Counterclaim.

2. Fleishman’s Motion for Summary Judgment [ECF No. 60] is DENIED. 

DONE AND ORDERED in Chambers in the Southern District of Florida, this 11th

day of September, 2024.

 _________________________________

 MELISSA DAMIAN

 UNITED STATES DISTRICT JUDGE

cc: Magistrate Judge Lauren F. Louis

counsel of record

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