Centro De Ensenanza Palabra De Fe, Inc. v. The City of Hialeah, Florida

Filing 57

ORDER Adopting 52 Report and Recommendations; granting 34 Motion to Dismiss for Lack of Jurisdiction; denying as moot 53 Motion to Stay. Closing Case. Signed by Judge Darrin P. Gayles on 3/14/2018. (hmo) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-21524-CIV-GAYLES/OTAZO-REYES
CENTRO DE ENSENANZA PALABRA
DE FE, INC.,
Plaintiff,
v.
THE CITY OF HIALEAH, FLORIDA,
Defendant.

/

ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE
THIS CAUSE comes before the Court on Magistrate Judge Alicia M. Otazo-Reyes’s
Report and Recommendation [ECF No. 52]. Plaintiff Centro de Ensenanza Palabra de Fe, Inc.
(“Plaintiff”) filed a Complaint against the City of Hialeah (“Defendant”) alleging violations of
Plaintiff’s federal constitutional and statutory rights and seeking to enjoin the enforcement of Defendant’s zoning code as applied to Plaintiff [ECF No. 1]. After the parties reached an initial resolution of the matter, Plaintiff voluntarily dismissed its case without prejudice. [ECF No. 21].
Shortly thereafter, however, Plaintiff moved to reopen the case and filed a First Amended Complaint [ECF No. 30]. Defendant moved to dismiss the Amended Complaint for lack of jurisdiction and failure to exhaust administrative remedies. [ECF No. 34]. The motion to dismiss was
referred to Judge Otazo-Reyes, pursuant to 28 U.S.C. § 636(b)(1)(B), for a report and recommendation. [ECF No. 39]. After multiple hearings and supplemental briefing on the motion, Judge
Otazo-Reyes recommends that the motion to dismiss be granted because the matter is not ripe
and the Court thus lacks subject matter jurisdiction. [ECF No. 52]. Plaintiff timely objected to
the Report and Recommendation. [ECF No. 52].

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 objection
is 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 objection
is 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).
This Court, having conducted a de novo review of the record, agrees with Judge OtazoReyes’s well-reasoned analysis and concludes that the matter must be dismissed.1 The Court
agrees with Judge Otazo-Reyes’s reading of Midrash Sephardi, Inc. v. Town of Surfside, 366
F.3d 1214 (11th Cir. 2004) and the other relevant precedent: because Plaintiff has not applied
for a Conditional Use Permit, this matter is not ripe. Further, in light of this finding, the Court
sees no basis on which to order jurisdictional discovery.
Accordingly, after careful consideration, it is ORDERED AND ADJUDGED as follows:
(1)

Judge Otazo-Reyes’s Report and Recommendation [ECF No. 52] is AFFIRMED
AND ADOPTED and incorporated into this Order by reference;

(2)

Defendant City of Hialeah’s Motion to Dismiss Plaintiff’s First Amended
Complaint for Declaratory Relief, Injunctive Relief and Damages [ECF No. 34] is
GRANTED;

(3)

Plaintiff’s First Amended Complaint [ECF No. 30] is DISMISSED WITHOUT
PREJUDICE;

1

The Court notes a number of non-dispositive errors in the Report and Recommendation, as set forth in Defendant’s Notice of Clarification in Support of Magistrate’s Report and Recommendation [D.E. 52] [ECF No. 55].
2

(4)

Defendant City of Hialeah’s Motion to Stay Discovery Pending Final Resolution
of its Motion to Dismiss [ECF No. 53] is DENIED AS MOOT;

(5)

This action is CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of March, 2018.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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