Ofer v. Millan et al

Filing 110

REPORT AND RECOMMENDATIONS re 89 Defendant's MOTION to Stay Discovery filed by Steven E. Gurian, Eric Schigiel, Marin, Eljaiek, Lopez, Martinez PL, Opustone, 94 MOTION to Stay Discovery filed by Stuart R. Kalb , Roniel Rodriguez IV PA, Roniel Rodriguez, IV, Stephen T. Millan, AJAR Holdings LLC, Millan Law Firm PA.; Recommending Motions to Stay be Granted. Objections to R&R due by 10/7/2024. Signed by Magistrate Judge Marty Fulgueira Elfenbein on 9/23/2024. See attached document for full details. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CV-20888-MOORE/Elfenbein
RAZIEL OFER,
Plaintiff,
v.
STEPHEN T. MILLAN, et al.,
Defendants.
______________________________/
REPORT AND RECOMMENDATION ON
DEFENDANTS’ MOTIONS TO STAY DISCOVERY
THIS CAUSE is before the Court on two motions: (1) Defendants Steven E. Gurian,
Marin, Eljaiek, Lopez & Martinez, P.L., Eric Schigiel, and Opustone’s Motion to Stay Discovery
Pending Adjudication of Plaintiff’s Motion for Leave to Amend the Second Amended Complaint
and Defendants’ Motion to Dismiss Third Amended Complaint (“Motion to Stay”), see ECF No.
[89]; and (2) Defendants AJAR Holdings, LLC, Stuart R. Kalb, Stephen T. Millan, Millan Law
Firm PA, Roniel Rodriguez IV, and Roniel Rodriguez IV, PA’s Motion to Stay Discovery, see
ECF No. [94] (collectively, the “Motions to Stay”). The Honorable K. Michael Moore referred
this case to me “to take all necessary and proper action as required by law regarding all pre-trial,
non-dispositive matters including discovery, and for a Report and Recommendation on any
dispositive matters.” See ECF No. [25]. For the reasons explained below, I RECOMMEND
that the Motions to Stay, ECF No. [89] and ECF No. [94], be GRANTED.
I.

BACKGROUND
Pro se Plaintiff Raziel Ofer initiated this action on March 6, 2024. See ECF No. [1]. In

the six months since then, the Complaint has been amended numerous times. See ECF No. [4];

CASE NO. 24-CV-20888-MOORE/Elfenbein
ECF No. [54]; ECF No. [75]. The culmination of those amendments is the complaint Plaintiff
filed on August 15, 2024 (the “Final Amended Complaint”), see ECF No. [76], which is the
operative one.
In various groups, all eleven Defendants have moved to dismiss the Final Amended
Complaint. See ECF No. [88]; ECF No. [93]; ECF No. [95]; ECF No. [100]. Defendants
Gurian, Marin, Eljaiek, Lopez & Martinez, P.L., Schigiel, and Opustone (the “Gurian
Defendants”) base their Motion to Dismiss primarily on their contention that Plaintiff has failed
to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). See ECF No. [88] at 1–8. They also argue that the Court does not have jurisdiction to
decide Plaintiff’s claims both because he lacks standing to bring them and because the RookerFeldman doctrine bars them. See ECF No. [88] at 8–13.
Defendants AJAR Holdings, LLC, Kalb, Millan, Millan Law Firm PA, Rodriguez, and
Roniel Rodriguez IV, PA (the “Rodriguez Defendants”) filed two different Motions to Dismiss.
See ECF No. [93]; ECF No. [95]. In the first, they argue that the Court should dismiss the Final
Amended Complaint under Rule 12(b)(1) and Rule 12(b)(6) because it suffers from the
following defects: “lack of subject matter jurisdiction,” “lack of standing,” it is an “improper
shotgun pleading,” it “fail[s] to state a claim,” and it violates “the Rooker-Feldman Doctrine.”
See ECF No. [93] at 1. In the second, they argue that the fugitive disentitlement doctrine, an
equitable doctrine that limits a fugitive’s access to file his own claims in court for refusing to
otherwise submit to the court’s authority, bars Plaintiff from pursuing the claims in the Final
Amended Complaint,. See generally ECF No. [95].
Finally, Defendant Santiago Eljaiek bases his Motion to Dismiss on his contention that
Plaintiff has failed to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), at

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CASE NO. 24-CV-20888-MOORE/Elfenbein
least as to him, because the Final Amended Complaint relies “on broad, conclusory statements
that fail to tie specific, wrongful acts to” him individually. See ECF No. [100] at 4.
Along with their Motions to Dismiss, the Gurian Defendants and the Rodriguez
Defendants filed Motions to Stay Discovery until the Court has ruled on the various Motions to
Dismiss. See ECF No. [89]; ECF No. [94]. In their Motion to Stay, the Gurian Defendants
argue that a stay would be in “the interest of judicial economy” because the Court’s rulings on
the Motions to Dismiss could “narrow the issues that would be litigated and likewise narrow the
scope of discovery.” See ECF No. [89] at 2–3.
In their Motion to Stay, the Rodriguez Defendants argue that a stay would “conserve
limited judicial resources” because addressing “facial challenges” like the ones in the Motions to
Dismiss “before permitting discovery” “lessens unnecessary costs.” See ECF No. [94] at 3–4.
They note that “threshold issues related to standing,” which they assert in their first Motion to
Dismiss, “are case dispositive and constitute a facial challenge properly resolved before
discovery.” See ECF No. [94] at 4. And they assert that, because “there will be no more
amendments” to the Final Amended Complaint, staying discovery until the Court rules on the
Motions to Dismiss would cause “absolutely no prejudice” to Plaintiff but would result in the
“undue expenditure of time and resources by the Court, the attorneys,” and the other Parties in
this case. See ECF No. [94] at 4.
Plaintiff did not respond to the Gurian Defendants’ Motion to Stay, but he responded to
the Rodriguez Defendants’ Motion to Stay (the “Response”).

See ECF No. [97].

In his

Response, Plaintiff contends he “has squarely refuted and discredited” the Rodriguez
Defendants’ arguments in support of dismissal “in his objection and response to” their Motions
to Dismiss. See ECF No. [97] at 2. Specifically, Plaintiff argues the Rodriguez Defendants’

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CASE NO. 24-CV-20888-MOORE/Elfenbein
Motions to Dismiss present an “erroneous view of diversity” jurisdiction and an incorrect
assertion “that the fugitive disentitlement doctrine” applies here, as Plaintiff asserts there is “no
nexus” between this case and the criminal action in which he is a fugitive. See ECF No. [97] at
2. Because of those purported problems with the Rodriguez Defendants’ Motions to Dismiss,
Plaintiff asserts the Final Amended Complaint “should survive dismissal” and the Rodriguez
Defendants’ Motion to Stay should be denied. See ECF No. [97] at 2–4.
In support of their Motion to Stay, the Rodriguez Defendants argue that “this Court lacks
subject jurisdiction” and that the Final Amended Complaint “is a classic shotgun pleading,” both
of which “are case dispositive” deficiencies.

See ECF No. [102] at 2–4.

Because those

arguments are “threshold determinations,” they assert “it makes little to no sense to expend
scarce judicial resources” and their own “time and effort . . . wrangling over discovery that is
objectionable, premature and irrelevant” until the Court rules on them. See ECF No. [102] at 2.
That is particularly true, they argue, because Plaintiff has not made “any claim or” given any
“basis for prejudice that he might suffer” from a stay, while they “are effectively without
recourse against” Plaintiff because he is a “fleeing felon.” See ECF No. [102] at 2–3 (footnote
omitted).
II.

LEGAL STANDARDS
“[D]istrict courts are entitled to broad discretion in managing pretrial discovery matters.”

Perez v. Miami-Dade Cnty., 297 F.3d 1255, 1263 (11th Cir. 2002). Within that discretion, it is
“the responsibility of trial courts to manage pretrial discovery properly in order to avoid a
massive waste of judicial and private resources and a loss of society’s confidence in the courts’
ability to administer justice.” Id. (quotation marks omitted). “If the district court dismisses a
nonmeritorious claim before discovery has begun, unnecessary costs to the litigants and to the

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court system can be avoided.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 (11th
Cir. 1997).
“Conversely, delaying ruling on a motion to dismiss such a claim until after the parties
complete discovery encourages abusive discovery and, if the court ultimately dismisses the
claim, imposes unnecessary costs.” Id. “For these reasons, any legally unsupported claim that
would unduly enlarge the scope of discovery should be eliminated before the discovery stage, if
possible.” Id. (footnotes omitted). “Allowing a case to proceed through the pretrial processes
with an invalid claim that increases the costs of the case does nothing but waste the resources of
the litigants in the action before the court, delay resolution of disputes between other litigants,
squander scarce judicial resources, and damage the integrity and the public’s perception of the
federal judicial system.” Id.
One kind of challenge courts should resolve “before discovery begins” is a “[f]acial
challenge[] to the legal sufficiency of a claim or defense, such as a motion to dismiss based on
failure to state a claim for relief.” See id. at 1367 (footnote omitted); Cabrera v. Progressive
Behav. Sci., Inc., 331 F.R.D. 185, 186 (S.D. Fla. 2019) (“As a general rule, motions to dismiss
should be resolved as soon as practicable to obviate avoidable discovery costs, especially where
a dubious claim appears destined for dismissal.”). Courts should resolve that kind of challenge
before discovery because it “always presents a purely legal question; there are no issues of fact
because the allegations contained in the pleading are presumed to be true,” so “neither the parties
nor the court have any need for discovery before the court rules on the motion.”

See

Chudasama, 123 F.3d at 1367.
“In deciding whether to stay discovery pending resolution of a motion to dismiss, the
court must balance the harm produced by a delay in discovery against the possibility that the

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motion will be granted and entirely eliminate the need for such discovery.”

Skuraskis v.

NationsBenefits Holdings, LLC, ___ F. Supp. 3d ___, 2023 WL 8698324, at *2 (S.D. Fla. Dec.
15, 2023) (citation omitted). “Both concerns are important — while a defendant should not be
forced to expend substantial resources answering discovery when the plaintiff’s claims clearly
lack merit, the delay and prolongation of discovery can also create case management and
scheduling problems and unfairly hold up the prosecution of the case.” Cabrera, 331 F.R.D. at
186.
“While it is not necessary for the Court to, in effect, decide the motion to dismiss to
determine whether the motion to stay discovery should be granted, it is necessary for the Court to
take a preliminary peek at the merits of the motion to dismiss to see if it appears to be clearly
meritorious and truly case dispositive.” Cuhaci v. Kouri Grp., LP, 540 F. Supp. 3d 1184, 1187
(S.D. Fla. 2021) (quotation marks omitted). “[W]here a pending motion may dispose of the
entire action, granting a stay of discovery not necessary for resolution of the motion may be
justified.” Skuraskis, 2023 WL 8698324 at *2. If a motion to dismiss raises “potentially fatal
pleading” and jurisdictional “deficiencies,” staying discovery is warranted. See id. at *5. But if
there “there appears to be a genuine dispute as to whether” a claim or defense is meritorious,
staying discovery is not warranted. See Flecha v. Neighbors Moving Servs., Inc., 944 F. Supp.
2d 1201, 1203 (S.D. Fla. 2013). The “proponent of a stay of discovery bears the burden of
demonstrating its necessity, appropriateness, and reasonableness.” Cuhaci, 540 F. Supp. 3d at
1187 (quotation marks omitted).
III.

DISCUSSION
After a preliminary peek at Defendants’ Motions to Dismiss, see ECF No. [88]; ECF No.

[93]; ECF No. [95]; ECF No. [100], it appears a stay of discovery is appropriate. Cumulatively,

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the Motions to Dismiss raise several potentially fatal pleading and jurisdictional deficiencies, see
Skuraskis, 2023 WL 8698324 at *5, including problems with subject-matter jurisdiction,
standing, and clarity (or lack thereof) with which Plaintiff alleged his claims. The Motions to
Dismiss also raise several other arguments suggesting that Plaintiff has failed to state a claim
upon which relief can be granted, see ECF No. [88]; ECF No. [93]; ECF No. [100].
More precisely, while the Court does not comment upon the merits of all arguments
raised in the Motions to Dismiss, it observes that the following arguments appear to be clearly
meritorious and truly case dispositive: (1) a lack of subject-matter jurisdiction based on the
Rooker-Feldman doctrine, which bars a party who lost in state court from seeking what in
substance would be appellate review of the state judgment in federal district court; (2) a lack of
subject-matter jurisdiction based on a failure of complete diversity, which stems from the
unclarity around Plaintiff’s citizenship; (3) a justiciability issue based on lack of standing, which
arises out of the fact that Plaintiff did not own the property at issue at the times relevant to this
action. See ECF No. [88]; ECF No. [93]; ECF No. [95]. Because any one of those arguments
has the potential to be truly case dispositive, a stay of discovery is warranted. See Cuhaci, 540 F.
Supp. 3d at 1187.
That is particularly true where, as here, a delay in discovery would not create case
management and scheduling problems or unfairly hold up the prosecution of the case. See
Cabrera, 331 F.R.D. at 186. After balancing the nonexistent harm a delay in discovery would
cause here against the possibility that the Motions to Dismiss will be granted and entirely
eliminate the need for such discovery, Skuraskis, 2023 WL 8698324 at *2, I respectfully
RECOMMEND that the Motions to Stay, ECF No. [89] and ECF No. [94], be GRANTED.
The Parties will have fourteen (14) days from the date of being served with a copy of this

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CASE NO. 24-CV-20888-MOORE/Elfenbein
Report and Recommendation within which to file written objections, if any, with the Honorable
K. Michael Moore, United States District Judge. Failure to timely file objections shall bar the
Parties from a de novo determination by the District Judge of an issue covered in the Report and
shall bar the Parties from attacking on appeal unobjected-to factual and legal conclusions
contained in this Report except upon grounds of plain error if necessary in the interest of justice.
See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885
F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.
DONE and ORDERED in Chambers in Miami, Florida on September 23, 2024.

_____________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE

cc:

All Counsel of Record
Raziel Ofer, PRO SE
3701 Degarmo Ln
Miami, FL 33133
646-431-7934
[e-mail]

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