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Centro de Ensenanza Palabra de Fe, Inc. v. City of Hialeah, 17-21524-CIV-GAYLES/OTAZO-REYES. (2018)

Court: District Court, N.D. Florida Number: infdco20180315b97 Visitors: 1
Filed: Mar. 14, 2018
Latest Update: Mar. 14, 2018
Summary: ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE DARRIN P. GAYLES , District 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 De-fendant's zoning code as applied to
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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 De-fendant's zoning code as applied to Plaintiff [ECF No. 1]. After the parties reached an initial reso-lution 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 Com-plaint [ECF No. 30]. Defendant moved to dismiss the Amended Complaint for lack of jurisdic-tion 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 recommen-dation. [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 recommen-dation. 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 Otazo-Reyes'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; (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.

FootNotes


1. The Court notes a number of non-dispositive errors in the Report and Recommendation, as set forth in Defend-ant's Notice of Clarification in Support of Magistrate's Report and Recommendation [D.E. 52] [ECF No. 55].
Source:  Leagle

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