[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10761 JULY 13, 2011
_____________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cv-00033-VMC-EAJ
GLENN W. CHERRY, Dr.,
CHARLES W. CHERRY, II, Esq.,
GROUP ASSETS, LLC,
Plaintiffs-Appellants,
versus
D. B. ZWIRN SPECIAL OPPORTUNITIES
FUND, L.P., BLACK ENTERPRISE/GREENWICH
STREET CORPORATE GROWTH INVESTORS,
LLC, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Middle District of Florida
____________
(July 13, 2011)
Before TJOFLAT, CARNES and HILL, Circuit Judges.
PER CURIAM:
This is an appeal from the dismissal of the plaintiffs’ amended complaint,
without leave to further amend, in their derivative action/class action against
multiple defendants, asserting eleven (11) alleged violations, including racial
discrimination under 42 U.S.C. §§ 1981 and 1982.1 Collectively, the various
defendants filed four (4) motions to dismiss. The report and recommendation of
the United States Magistrate Judge recommended that the plaintiffs’ amended
complaint be dismissed, and the motions to dismiss be granted. The district court,
after careful consideration, adopted the report and recommendation of the
magistrate judge, with the added determination that the dismissal be without leave
to amend.
1
The named plaintiffs are: Dr. Glenn W. Cherry, Charles W. Cherry, II (collectively, the
Cherrys), and Group Assets, LLC (Group Assets). The Cherrys are shareholders in defendant
Tama Broadcasting, Inc. (Tama). They formed Group Assets, a Florida limited liability company
which leased property for certain radio stations and studios owned by Tama.
The named defendants are: D.B. Zwirn Special Opportunities Fund L.P., Straight Way
Radio, LLC, Bernard Radio, LLC, Daniel B. Zwirn, Peter Lieberman, Ted Bolton, Tama, Black
Enterprise/Greenwich Street Corporate Growth Investors, LLC, Black Enterprise/Greenwich
Street Corporate Growth Partners, L.P., Jeffrey Scott, Ed A. Williams, and Chris McMurray.
Plaintiffs alleged that certain of the defendants: (1) violated the Equal Credit Opportunity
Act, 15 U.S.C. § 1691, et seq.; (2) violated 42 U.S.C. §§ 1981, 1982; (3) violated Section 10(b)
of the Securities Exchange Act of 1934 and Rule 10b-5; (4) violated Section 310(d) of the
Federal Communications Act, 47 U.S.C. § 151, et seq.; (5) breached their fiduciary duties; (6)
breached their duty of care and improvidently lent funds to plaintiffs; (7) breached an implied
covenant of good faith and fair dealing; (8) tortiously interfered with plaintiffs’ contractual
relations and prospective business; (9) engaged in deceptive business practices; (10) violated
Sections 448.102(1) and (3) of the Florida Whistle-Blower Act; and (11) unjustly enriched
themselves by utilizing plaintiffs’ property without paying rent.
2
We have thoroughly reviewed the record in this case, the report and
recommendation of the magistrate judge, the district court order adopting the
magistrate judge’s report and recommendation, the determination by the district
court that the dismissal be without leave to further amend, and the briefs and the
arguments of counsel. Finding no error, the judgment of the district court is
affirmed.
AFFIRMED.
3