Ofer v. Millan et al

Filing 84

OMNIBUS ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND DEFENDANTS' MOTIONS TO STAY DISCOVERY. Signed by Magistrate Judge Marty Fulgueira Elfenbein on 8/27/2024. See attached document for full details. (cds) Modified Document Type on 8/28/2024 (cds).

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.
______________________________/
OMNIBUS ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO AMEND
COMPLAINT AND DEFENDANTS’ MOTIONS TO STAY DISCOVERY
THIS CAUSE is before the Court on three motions: (1) Plaintiff Raziel Ofer’s Motion for
Leave to Amend Second Amended Complaint (“Motion for Leave to Amend”), see ECF No. [80];
(2) 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. [81]; and Defendants Stuart R. Kalb, Stephen T.
Millian, Millian Law Firm P.A., Roniel Rodriguez IV, Roniel Rodriguez IV P.A., and AJAR
Holdings LLC’s Notice of Joinder in the Motion to Stay (“Notice of Joinder”), see ECF No. [82],
which the Court construes as that group of Defendants’ motion to stay discovery. For the reasons
explained below, all three motions are DENIED. 1
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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]. Although it does not appear that the
Eleventh Circuit Court of Appeals has addressed the issue in a published opinion, the weight of authority
in this circuit as well as other circuits indicates that a magistrate judge may “hear and determine” motions
for leave to amend pleadings under 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) as
these are non-dispositive matters. See Reeves v. DSI Sec. Servs., Inc., 395 F. App’x 544, 548 (11th Cir.

CASE NO. 24-CV-20888-MOORE/Elfenbein

I.

Motion for Leave to Amend, ECF No. [80]

Pro se Plaintiff Raziel Ofer initiated this action on March 6, 2024, see ECF No. [1], and
the next day filed an amended complaint (“First Amended Complaint”), see ECF No. [4], as he
was permitted to do under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 15(a)(1)(A).
The First Amended Complaint asserted claims against eleven defendants: (1) Opustone; (2) Eric
Shiegiel; (3) Steven E. Gurian; (4) Santiago Eljaiek, III; (5) Marin, Eljaiek, Lopez, Martinez PL;
(6) Roniel Rodriguez, IV; (7) Roniel Rodriguez IV PA; (8) AJAR Holdings LLC; (9) Stuart R.
Kalb; (10) Stephen T. Millan; and (11) Millan Law Firm PA. See ECF No. [4].
On May 31, 2024, Judge Moore entered an order consolidating another action that Plaintiff
filed — Case No. 24-cv-21141-KMM — with this action (the “Consolidation Order”). See ECF
No. [49]. In Case No. 24-cv-21141-KMM, Plaintiff filed a complaint against only four defendants,
all of whom are also Defendants in this action. Compare Case No. 24-cv-21141-KMM, ECF No.
[1] (suing four Defendants), with Case No. 24-cv-20888-KMM, ECF No. [4] (suing eleven
defendants, including the four Defendants sued in Case No. 24-cv-21141-KMM). In the
Consolidation Order, Judge Moore designated this action as the “lead case” and directed Plaintiff
to “file an amended complaint” in the now-consolidated action. See ECF No. [49].
2010) (“A district court may also designate a magistrate judge to rule on certain non-dispositive pretrial
motions, such as a motion to amend a complaint.”); Palmore v. Hicks, 383 F. App’x 897, 899-900 (11th
Cir. 2010) (“An order disposing of a motion to amend is a non-dispositive pretrial ruling.”); Bosarge v.
Mobile Area Water & Sewer Serv., No. 18-00240-TM-N, 2018 WL 11319086, at *2 (S.D. Ala. Sept. 19,
2018) (collecting cases nationwide in which courts have determined that motions to amend pleadings are
non-dispositive). The same is true for motions to stay discovery pending the outcome of a dispositive
motion. See Bufkin v. Scottrade, Inc., 812 F. App’x 838, 841 (11th Cir. 2020) (finding that the district court
acted within its discretion to refer a motion to stay discovery to the magistrate judge for a ruling in
accordance with § 636(b)(1)(A)); Moore v. Chuck Stevens Automotive, Inc., No. 12-00663-KD-C, 2013
WL 627232, at *1 (S.D. Ala. Feb. 20, 2013) (concluding that a decision to grant a motion to stay is “merely
suspensory” and is non-dispositive). Because the Motion for Leave to Amend, the Motion to Stay, and the
Notice of Joinder all involve non-dispositive issues, I resolve all three motions with an Order instead of a
Report and Recommendation.

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CASE NO. 24-CV-20888-MOORE/Elfenbein
Plaintiff filed that amended complaint on June 14, 2024 (“Second Amended Complaint”).
See ECF No. [54]. In the Second Amended Complaint, Plaintiff asserted claims against only four
Defendants: (1) Roniel Rodriguez IV; (2) Roniel Rodriguez IV PA; (3) AJAR Holdings LLC; and
(4) Stuart R. Kalb. See ECF No. [54]. Those are the same four Defendants Plaintiff sued in Case
No. 24-cv-21141-KMM. See ECF No. [78].
Because it appeared that Plaintiff directed the Second Amended Complaint at Case No. 24cv-21141-KMM instead of at this consolidated action, which suggested that Plaintiff, a pro se
party, misunderstood Judge Moore’s instructions in the Consolidation Order, the undersigned
recommended that Plaintiff be given leave, under Rule 15(a)(2), to amend his complaint one last
time to include all defendants and claims he intended to be part of the consolidated action. See
ECF No. [68]. By Paperless Order on August 1, 2024, Judge Moore adopted this Court’s
recommendation (the “Paperless Order”) and gave Plaintiff “leave to have one final opportunity”
to “amend his Complaint to include all defendants and claims he intends to be part of this
consolidated action no later than August 15, 2024.” See ECF No. [74] (italics in original, underline
added).
Plaintiff filed that amended complaint on August 14, 2024 (“August 14 Complaint”). See
ECF No. [75]. But despite Judge Moore’s clear direction in the Paperless Order that whatever
complaint Plaintiff filed next would be his final pleading in this action, Plaintiff filed another
complaint the next day, August 15 (“August 15 Complaint”). See ECF No. [76]. Plaintiff did not
ask the Court for leave to file the August 15 Complaint or explain why he filed it, but the addition
of “(corrected)” to the title of the document suggested that Plaintiff filed the August 15 Complaint
to correct something in the August 14 Complaint. Compare ECF No. [75], with ECF No. [76].
Reading the Paperless Order strictly, Plaintiff was not free to file the August 15 Complaint,

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CASE NO. 24-CV-20888-MOORE/Elfenbein
as it amounted to yet another amended pleading. See ECF No. [74]. But because courts hold
pleadings filed by pro se parties like Plaintiff to “a less stringent standard” than those drafted by
attorneys, see Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), the undersigned
gave Plaintiff leeway and accepted the August 15 Complaint as Plaintiff’s final amended
complaint. A few hours later, however, Plaintiff filed yet another complaint (the “August 16
Complaint”). 2 See ECF No. [77]. Once again, Plaintiff did not ask the Court for leave to file the
August 16 Complaint or explain why he filed it, but the title of the document — which changes
“second” to “third” and adds “(corrected)” — suggested that Plaintiff filed the August 16
Complaint to correct something in the August 15 Complaint. Compare ECF No. [76], with ECF
No. [77]. And once again, reading the Paperless Order, Plaintiff was not free to file the August 16
Complaint. See ECF No. [74].
Having already given Plaintiff leeway to substitute the August 15 Complaint for the August
14 Complaint, the Court struck the August 16 Complaint. See ECF No. [79]. As explained in the
Order striking that complaint, ECF No. [79]: “Although Federal Rule of Civil Procedure 15 allows
Plaintiff to amend his complaint ‘once as a matter of course,’ see Fed. R. Civ. P. 15(a)(1), it does
not allow him to amend it any more than that without leave of court, see Fed. R. Civ. P. 15(a)(2).
Plaintiff has not sought or been granted leave of court for any additional amendments.” See ECF
No. [79]. No doubt prompted by the Court’s reference to Rule 15(a)(2), Plaintiff then filed the
Motion for Leave to Amend. See ECF No. [80].
In the Motion for Leave to Amend, Plaintiff asks for permission to substitute the August
16 Complaint for the August 15 Complaint. See ECF No. [80]. Plaintiff explains that he

Plaintiff filed the August 16 Complaint late in the day on August 15, but the Clerk’s Office did not docket
it until August 16. See ECF No. [77]. The Court refers to it as the “August 16 Complaint” to avoid
confusion.

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“intended” the August 16 Complaint “to be the operative” one but that the August 15 Complaint
“was delivered to the Court in error.” See ECF No. [80] at 2. The reason for the “error” is that,
“due to . . . oversight,” Plaintiff gave the August 15 Complaint to a courier and the courier delivered
it to the Court before Plaintiff gave the courier the August 16 Complaint. See ECF No. [80] at 2.
Plaintiff asserts the Court should grant him leave to amend because it is “in the interests of justice”
for him “to better plead the causes of action and to clarify facts with more specificity” so that
Defendants “may be placed on proper notice as to what to defend against.” See ECF No. [80] at
1–2. The Court disagrees.
Having compared the August 16 Complaint to the August 15 Complaint, the Court notes
two obvious differences: (1) the addition of an introductory paragraph giving Plaintiff’s theory of
the case, see ECF No. [77] at 2; and (2) the addition of a civil conspiracy claim against all eleven
Defendants, see ECF No. [77] at 42–44. Neither of those additions better pleads or clarifies the
facts of the six causes of action in the August 15 Complaint. Instead, they insert, respectively,
inappropriate legal argument and a new, unpled claim.
While Plaintiff may desire to add those components, particularly the unasserted claim, it is
not in the interest of justice. That is particularly true given how many previous opportunities
Plaintiff has had to assert the claims he wanted in whatever detail he wanted, see ECF No. [1];
ECF No. [4]; ECF No. [54]; ECF No. [75], and Judge Moore’s clear direction that Plaintiff would
have only one final opportunity to amend, see ECF No. [74]. Allowing Plaintiff to substitute the
August 16 Complaint for the August 15 Complaint would give him three final opportunities, in
direct contravention of Judge Moore’s Paperless Order. And, it bears noting that Plaintiff’s
continuous evolution of his claims in this case has created a moving target for Defendants who
have been litigating and defending this case for five months without any clarity as to the allegations

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and claims against them. Accordingly, the Motion for Leave to Amend, ECF No. [80], is
DENIED.
II.

Motion to Stay, ECF No. [81], and Notice of Joinder, ECF No. [82]

When Plaintiff filed the Motion for Leave to Amend, ten of the eleven Defendants asked
the Court to stay discovery. See ECF No. [81] (Motion to Stay filed by four Defendants); ECF
No. [82] (Notice of Joinder filed by six Defendants, adopting the Motion to Stay). They argued it
would be in “the interest of judicial economy” to stay discovery until the Court ruled both on
Plaintiff’s Motion for Leave to Amend and on apparently forthcoming motions to dismiss that
Defendants intend to file once the operative complaint has been identified. See ECF No. [81] at
2–3; ECF No. [82] at 1–2. A stay would serve judicial economy, according to Defendants, because
a ruling on either the Motion for Leave to Amend or any forthcoming motions to dismiss could
“narrow the issues” and focus “future discovery.” See ECF No. [81] at 2–3.
Because the Court has denied Plaintiff’s Motion for Leave to Amend, it is now clear that
the August 15 Complaint is the operative one, so a stay of discovery on that basis would not be in
the interest of judicial economy. And although Defendants assert that the forthcoming motions to
dismiss will be largely the same as their previously filed motions to dismiss, see ECF No. [81] at
2–3; ECF No. [82] at 1–2, there are currently no motions to dismiss pending. Without any pending
motions to dismiss, the Court has no way to conduct a “preliminary peek” and evaluate the
likelihood of success on the motions to dismiss to determine whether a stay of discovery would be
appropriate. See Dayem v. Chavez, No. 13-62405-CIV, 2014 WL 12588513, at *1 (S.D. Fla. Mar.
11, 2014) (explaining that a court may stay discovery pending the resolution of a motion if such
resolution will dispose of the entire case, and in order to determine whether there is a strong
likelihood that the motion will be granted, thereby eliminating the need for discovery, the trial

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court “must take a preliminary peek at the merits of the motion.”). Accordingly, the Motion to
Stay, ECF No. [81], and the Notice of Joinder, ECF No. [82], which the Court construes as a
motion to stay, are DENIED WITHOUT PREJUDICE.
DONE and ORDERED in Chambers in Miami, Florida on August 27, 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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