Luis Reyes et al v. GARLAND et al

Filing 22

ORDER: The Report (DE 19 ) is AFFIRMED AND ADOPTED. Defendants' Motion to Dismiss (DE 8 ) is GRANTED. Plaintiffs' Complaint is DISMISSED WITHOUT PREJUDICE and without leave to amend. All pending motions, if any, are DENIED AS MOOT. All case deadlines and hearings are CANCELED. This case is CLOSED. Signed by Judge Kathleen M. Williams on 11/26/2024. See attached document for full details. (wce)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-24695-CV-WILLIAMS
ROBERTO LUIS REYES, et al.,
Plaintiffs,
v.
MERRICK GARLAND, et al.,
Defendants.

/
ORDER

THIS MATTER is before the Court on Magistrate Judge Jonathan Goodman’s
Report and Recommendation (DE 19) (“Report”) on Defendants’ Motion to Dismiss (DE
8) (“Motion”). In the Report, Magistrate Judge Goodman recommends that the Court
grant Defendants’ Motion and dismiss Plaintiffs’ Complaint. (DE 19 at 2.) Specifically,
Judge Goodman recommends that if the Court agrees that there is no non-discretionary
duty to adjudicate an already-refused visa application, then the dismissal should be with
prejudice. See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to
amend a complaint is futile when the complaint as amended would still be properly
dismissed or be immediately subject to summary judgment for the defendant.”). If, on the
other hand, the Court decides to dismiss Plaintiffs’ Complaint only for failure to state an
unreasonable delay claim (applying the TRAC factors 1), then Judge Goodman
recommends that the dismissal should be without prejudice but without leave to amend.
See Key v. Palmer, No. 24-CV-1563, 2024 WL 4289582, at *6 (E.D. Cal. Sept. 25, 2024)

1 See Telecommunications Rsch. & Action Ctr. v. F.C.C., 750 F.2d 70, 79–80 (D.C. Cir.

1984).

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(dismissing complaint without leave to amend because the pleading deficiencies could
not be cured with additional facts but “without prejudice, such that plaintiff may bring a
future action if the delay unreasonably persists”). 2 Plaintiffs filed Objections to the Report
(DE 20), to which Defendants filed a Response (DE 21). The Court conducted a de novo
review of the portions of the Report to which Plaintiff objected and a review of the
remainder of the Report for clear error.
Upon careful review of the Report, the Objections, the record, and applicable law,
the Court agrees with Judge Goodman that Plaintiffs’ Complaint should be dismissed
without prejudice and without leave to amend for failure to state an unreasonable delay
claim. Having dismissed Plaintiff’s Complaint on this basis, the Court declines to address
whether there is a non-discretionary duty to adjudicate an already-refused visa
application.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Report (DE 19) is AFFIRMED AND ADOPTED.
2. Defendants’ Motion to Dismiss (DE 8) is GRANTED.
3. Plaintiffs’ Complaint is DISMISSED WITHOUT PREJUDICE and without leave
to amend.
4. All pending motions, if any, are DENIED AS MOOT.
5. All case deadlines and hearings are CANCELED.
6. This case is CLOSED.

2 Judge Goodman also notes that Plaintiffs, who are represented by counsel, have not

sought leave to amend. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541,
542 (11th Cir. 2002) (en banc) (“A district court is not required to grant a plaintiff leave to
amend his complaint sua sponte when the plaintiff, who is represented by counsel, never
filed a motion to amend nor requested leave to amend before the district court.”).
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DONE AND ORDERED in Chambers in Miami, Florida, this 26th day of November,
2024.

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