UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:22-cv-24066-KMM 

GRACE, INC.; ENGAGE MIAMI, INC.; 

SOUTH DADE BRANCH OF THE NAACP; 

MIAMI-DADE BRANCH OF THE NAACP; 

CLARICE COOPER; YANELIS VALDES; 

JARED JOHNSON; and ALEXANDER 

CONTRERAS, 

 Plaintiffs, 

v. 

CITY OF MIAMI, 

 Defendant. 

 / 

DEFENDANT’S MOTION TO STAY CASE PENDING APPEAL AND TO CONTINUE 

TRIAL AND PRETRIAL DEADLINES 

Pursuant to Rule 62(d) Florida Rules of Civil Procedure, Defendant, City of Miami (the 

“City”), moves to stay discovery and further proceedings pending appeal and to continue the trial 

and pretrial deadlines. Plaintiffs have indicated that they seek to supplement their pleadings, as 

they must because the Amended Complaint is now moot. The City does not oppose that filing as 

long as the case is continued and stayed pending appeal to allow the issues raised in the Court’s 

remedial order and echoed in the proposed supplemental pleading may be addressed by the Court 

of Appeals.1

 

1 While the City has had less than 24 hours to review the new pleading, it does intend to move to 

dismiss the Supplemental Pleading on the merits because it fails to state a claim and because 

Plaintiffs are judicially estopped from taking positions that are contrary to the positions that they 

took in this case to obtain the preliminary injunction. 

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Plaintiffs, Grace, Inc. (“Grace”), Engage Miami, Inc. (“Engage Miami”), South Dade 

Branch Of The NAACP (“South Dade NAACP”), Miami-Dade Branch Of The NAACP 

(“Miami-Dade NAACP”), Clarice Cooper, Yanelis Valdes, Jared Johnson, Alexandra Contreras 

and Steven Miro (collectively, the “Plaintiffs”), filed this case on December 15, 2023 (DE 1), 

and amended the complaint on February 10, 2023. DE 23. That same day they filed a motion 

for preliminary injunction. DE 26. Defendants moved to dismiss the Amended Complaint. DE 

34. This Court set the case for trial on January 29, 2024. DE 32. Pursuant to this Court’s order, 

the discovery cut off is October 21, 2023. Id. 

On March 29, the Court’s Magistrate conducted an evidentiary hearing on Plaintiffs’ 

Expedited Motion, and issued her Report and Recommendations on May 3, 2023. See DE 52. 

The Magistrate found that Plaintiffs had a likelihood of success on the merits that the City’s 

Redistricting Plan was unconstitutional. Id. This Court adopted that recommendation and found

that the City’s redistricting map set forth in City of Miami Resolution 22-131 (the “Enjoined 

Plan”) unconstitutionally racially gerrymandered the City to preserve “three Hispanic districts, 

one Black district, and one Anglo district.” DE 60 p.16; DE 94 pp.20-21. The Court issued an 

order enjoining the City from going forward with that plan for the upcoming election on 

November 7, 2023. DE 60. 

 On June 1, 2023, Plaintiffs moved to stay discovery while the parties engaged in 

mediation and a remedial process. The following day, the Court entered an order granting the 

stay “until the interim remedial phase of this case has concluded.” DE 67. The parties 

unsuccessfully mediated, and then the City adopted a new plan enacted in Resolution 23-271 (the 

“New Plan”). DE 77. This was not a remedial plan insofar as the Enjoined Plan has been 

superseded by the New Plan and will no longer reflect the City’s districts regardless of the 

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outcome of this case. Id. The City then moved to dismiss this action as moot. DE 80. Plaintiffs 

objected to the New Plan [DE 83]. This Court denied the motion to dismiss as moot, not on the 

merits, but because it found it had the remedial authority to ensure that any new plan passed 

“does not suffer from the same constitutional infirmities” as the Enjoined Plan. DE 91 p.10. 

 On July 30, 2023, this Court entered an Order that rejected the “New Plan” finding that it 

failed to correct the prior racial predominance of the Enjoined Plan (the “Remedial Order”). DE 

94 pp.27,35-39. The Court mandated that the City adopt a plan proposed by Plaintiffs (Plan 4 or 

the “Mandated Plan”). The City appealed [DE 96] and filed a motion for stay. DE 97. The 

Appellate Court stayed the Remedial Order on August 4, 2023. Exhibit A (ECF 25). The Court 

observed that Plaintiffs Map 4 looked a lot like the New Plan and had a similar racial make-up. 

Id. p.5. Plaintiffs then filed an application with the Supreme Court of the United States to 

reverse that stay. On August 17, 2023 the Supreme Court denied the application. Exhibit B. 

The appeal in the Eleventh Circuit is proceeding on an expedited basis with the City’s brief due 

on September 11, 2023. Exhibit C. 

 The pleadings are not closed and this case is currently not at issue. The Amended 

Complaint is solely directed to the now moot Enjoined Plan. It should either be dismissed as 

moot, or Plaintiffs must file an amended (or supplemented) pleading to challenge the New Plan, 

which they have indicated their intention to do.2

 With the remedial phase currently on appeal 

(and thus not concluded), the discovery stay appears to be still in effect. Plaintiffs apparently 

feel otherwise and have served a request for production of documents. If the stay is lifted, then 

the parties only have two months left to conduct discovery in this significant case. Additionally, 

 

2

 Plaintiffs submitted the proposed pleading to the City for review to see if the City opposes it as 

part of their conferral. 

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the appeal will necessarily address the merits of whether the New Plan “suffers from the same 

constitutional infirmities” as the Enjoined Plan, and thus whether it is unconstitutional. The 

outcome of the appeal will significantly shape this proceeding. 

For example, in their challenge to the New Plan, and in this Court’s Order rejecting the 

New Plan, the basis for the position that District 5 is an unconstitutional racial gerrymander was 

that the City failed to consider a functional analysis prior to adopting a Voting Rights Act 

(“VRA”) district with a 50.3% Black Voting Age Population (“BVAP”), notwithstanding that it 

is was not statistically different than the BVAP in Plaintiffs’ proposed plans. This Court rejected 

that narrow tailoring was objective test as to whether it is the least restrictive means because the 

Supreme Court adopted a subjective safe harbor in this context that, as long as the legislative 

body had a strong basis in evidence for the belief that it was narrowly tailored, such as 

considering a functional analysis,3 the district could not be challenged. DE 94 pp. 38-39 (citing 

Bethune-Hill v. Va. State Bd. of Elections (Bethune-Hill I), 580 U.S. 178, 187 (2017). This 

question is squarely before the Court of Appeal, and it is also a key part of Plaintiff’s 

supplemental pleadings. Indeed, it must be because they cannot claim that 50.3% is not 

objectively narrowly tailored in light of their own proposed districts. If District 5 is not 

unconstitutional, then none of the racial gerrymandering of District 5 (which affected the 

 

3

 A functional analysis is used to determine whether the Legislature in good faith believed a 

VRA district was required. Bethune-Hill v. Va. State Bd. of Elections (Bethune-Hill I), 580 U.S. 

178, 193 (2017) Is there a large enough population, does it vote cohesively, and is there racially 

polarized voting? Plaintiffs conceded all of these points, and the only issue was whether 50.3% 

was excessive. 

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adjoining districts) is unconstitutional. This question of law on appeal will have an immense 

impact on this case and on the scope of discovery and expert analysis. 

It is two and a half months until the election. Discovery in this case will burden the City 

and the Commissioners while they are preparing for the election. For example, Plaintiffs have 

served a Request for Production related to every redistricting cycle for the past three decades. 

See Request for Production, Exhibit D. Additionally, the Plaintiffs have requested the 

depositions of City Commissioners and the City Attorney—depositions that will undoubtedly 

involve discovery motions involving legislative privilege and attorney-client and attorney work 

product privileges. Moreover, as the Plaintiffs have now indicated their intent to amend the 

pleadings to redirect their challenge to the New Plan, notwithstanding the fact that the time for 

amendment of the pleadings has passed, conducting discovery on a yet-to-be-filed amended 

complaint would be premature. 

 "The district court has broad discretion to stay proceedings as an incident to its power to 

control its own docket." Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 

1164, 1172 n.7 (11th Cir. 2004) (quoting Clinton v. Jones, 520 U.S. 681, 706 (1997)). The length 

of the requested stay will not be indefinite or immoderate. See Ortega Trujillo v. Conover & Co. 

Commc'ns, 221 F.3d 1262, 1264 (11th Cir. 2000). Defendant’s request for stay is only pending 

the outcome of the appeal, which as noted above, has been expedited at the Plaintiffs’ request 

and Defendant’s consent. 

 Where, like here, the case is not at issue and the pleading is subject to a dispositive 

motion4

 the Eleventh Circuit has held the district court should generally stay all discovery 

 

4

 The Amended Complaint is subject to a motion to dismiss and the Supplemental Complaint 

will also be subject to a dispositive motion. 

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during the pendency of that motion. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 

1366 (11th Cir. 1997) (reversing district court’s order compelling discovery entered during 

pendency of motion to dismiss). Though the district court is vested with discretion over 

discovery matters, “[t]his discretion is not unfettered...” Id. at 1367. “Facial challenges to the 

legal sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a 

claim for relief, should ... be resolved before discovery begins.” Id. “[N]either the parties nor 

the court have any need for discovery before the court rules on the motion.” Id. As the Eleventh 

Circuit explained in Chudasama, “[i]f the district court dismisses a nonmeritorious claim before 

discovery has begun, unnecessary costs to the litigants and to the court system can be avoided.” 

Id. at 1368. The court reasoned: 

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.

It is appropriate to delay discovery until the district court determines that there is a 

cognizable cause of action asserted in the complaint. Moore v. Potter, 141 Fed. Appx. 803, 807-

08 (11th Cir. 2005) (affirming stay of discovery during pendency of motion to dismiss 

complaint); see also Solar Star Sys., LLC v. Bellsouth Telecomms., Inc., No. 10-21105-CIV, 

2011 WL 1226119, *1 (S.D. Fla. Mar. 30, 2011) (staying all discovery pending ruling on motion 

to dismiss that is “potentially dispositive of the entire action”); Staup v. Wachovia Bank, N.A., 

No. 08-60359-CIV, 2008 WL 1771818, *1 (S.D. Fla. Aug. 16, 2008) (staying all discovery, 

including Rule 26(a) initial disclosures, until resolution of pending motion to dismiss); Carcamo 

v. Miami-Dade County, No. 03-20870-CIV, 2003 WL 24336368, *1 (S.D. Fla. Aug. 1, 2003) 

Case 1:22-cv-24066-KMM Document 104 Entered on FLSD Docket 08/25/2023 Page 6 of 9
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(granting stay of discovery until court rules on pending motion to dismiss); In re Managed Care 

Litig., No. 00-1334-MD, 2001 WL 664391, *3 (S.D. Fla. June 12, 2001) (staying discovery until 

ruling on pending motions to dismiss). 

Even absent such a motion, such a stay would be appropriate here. The factors to 

consider in deciding whether to grant a stay of discovery in the absence of a dispositive motion 

are: “(1) whether the litigation is at an early stage; (2) whether a stay will unduly prejudice or 

tactically disadvantage the non-moving party; (3) whether a stay will simplify the issues in 

question and streamline the trial; and (4) whether a stay will reduce the burden of litigation on 

the parties and on the court.” Chico v. Dunbar Armored, Inc., 2017 WL 4476334, at *2 (S.D. Fla. 

Oct. 6, 2017) (quoting Grice Eng’g, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915, 920 (W.D. 

Wis. 2010)); see also Prisua Eng’g Corp. v. Samsung Elecs. Co., 472 F. Supp. 3d 1183 (S.D. 

Fla. 2020). Plaintiffs supplemental pleading is essentially a new action. Additionally, as set 

forth above, a stay pending a resolution of the appeal will substantially streamline the issues and 

reduce the burden on the parties and the Court. 

There will be no prejudice to Plaintiffs from the Stay. The November 7, 2023 election is no 

longer at issue. In accordance with the stay issued by the Eleventh Circuit, it will be conducted 

according to the New Plan. The next election is not until November 2025. Staying this case and 

continuing the trial date will provide time for the Eleventh Circuit to rule, providing necessary 

guidance on the applicable law, and for the parties to conduct discovery and develop the case. 

Certificate of Conferral 

I certify that prior to filing this motion, I attempted to resolve the matter in good faith by 

discussing the relief requested via e-mail on August 24, 2023 with opposing counsel. They 

oppose the request. 

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WHEREFORE, Defendant respectfully asks this Court to stay the Order pending appeal 

and continue the trial and pretrial deadlines in this case. 

 Dated this 25th day of August, 2023. 

 Respectfully submitted, 

 By: s/ Christopher N. Johnson 

GRAYROBINSON, P.A. 

Jason L. Unger, Esquire 

Florida Bar No. 991562 

George T. Levesque 

Florida Bar No. 55551 

Andy Bardos 

Florida Bar No. 822671 

301 S. Bronough Street 

Suite 600 

Tallahassee, Florida 32301 

Telephone: (850) 577-9090 

Facsimile: (850) 577-3311 

GRAYROBINSON, P.A.

Christopher N. Johnson 

 Florida Bar No. 69329 

Email: Christopher.Johnson@gray-robinson.com 

Marlene Quintana, B.C.S. 

Florida Bar No. 88358 

Email: Marlene.Quintana@gray-robinson.com 

333 S.E. 2nd Avenue, Suite 3200 

Miami, Florida 33131 

Telephone: (305) 416-6880 

Facsimile: (305) 416-6887 

CITY OF MIAMI 

VICTORIA MÉNDEZ, City Attorney 

Florida Bar No. 194931 

JOHN A. GRECO, Chief Deputy City Attorney 

Florida Bar No. 991236 

KEVIN R. JONES, Deputy City Attorney 

Florida Bar No. 119067 

KERRI L. MCNULTY, 

Litigation & Appeals Division Chief 

Florida Bar No. 16171 

Office of the City Attorney 

444 S.W. 2nd Avenue 

Miami, FL 33130 

Case 1:22-cv-24066-KMM Document 104 Entered on FLSD Docket 08/25/2023 Page 8 of 9
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Telephone: (305) 416-1800 

Facsimile: (305) 416-1801 

 Attorneys for Defendant 

CERTIFICATE OF SERVICE 

 I hereby certify that on August 25, 2023, I electronically filed the foregoing with the Clerk of 

the Court by using the CM/ECF. I also certify that the foregoing document is being served this day 

on all counsel of record or pro se parties either via transmission of Notice of Electronic Filing 

generated by CM/ECF or in some other authorized manner for those counsel or parties who are not 

authorized to receive electronically Notices of Electronic Filing. 

 By: s/ Christopher N. Johnson 

Christopher N. Johnson, Esq. 

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