Opinion
CASE NO. CV-F-07-1094-LJO-DLB.
November 21, 2007
ORDER ON RESPONDENTS' MOTION TO DISMISS AND PETITIONER'S MOTION TO AMEND THE COMPLAINT (Docs. 6, 7)
Introduction
Petitioner Rita Valencia De Gomez ("Ms. Valencia De Gomez") filed a petition for writ of mandamus, seeking to compel Respondents to adjudicate her I-485 application to adjust her immigration status to legal permanent resident. Respondents moved to dismiss this action for insufficiency of process pursuant to Fed.R.Civ.P. 12(b)(4), lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Ms. Valencia De Gomez conceded that process was improper, moved to amend the complaint, and opposed Respondents' motion to dismiss on all other grounds. For the reasons outlined below, this Court grants Respondents' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(4) and grants Ms. Valencia De Gomez's motion to amend the complaint.
Respondents are Michael Chertoff, Secretary of the Department of Homeland Security, Alberto Gonzales, United States Attorney General, Emilio T. Gonazlez, Director of the United States Citizenship and Immigration Services, David N. Still, District Director, Bureau of Citizenship and Immigration Services San Francisco District Office, and Robert S. Mueller, III, Director of the Federal Bureau of Investigation.
Background
On July 27, 2007, Ms. Valencia De Gomez filed her petition for writ of mandamus to adjust status and compel agency action pursuant to 28 U.S.C. § 1361 of the Mandamus Act and 5 U.S.C. § 706(1) of the Administrative Procedures Act. Ms. Valencia De Gomez requests, inter alia, this Court to: (1) assume jurisdiction over the matter, (2) remand the matter to the United States Citizenship and Immigration Services ("USCIS") Fresno field office to adjudicate her adjustment of status application within 30 days, (3) order Robert S. Mueller, III of the Federal Bureau of Investigation to issue the results of a criminal background check to USCIS relating to Ms. Valencia De Gomez's application.
On September 25, 2007, Respondents filed the instant motion to dismiss. Ms. Valencia De Gomez filed her motion to amend the complaint on November 2, 2007, along with her opposition to Respondents' motion to dismiss. Respondents did not file an opposition to Ms. Valencia Ge Gomez's motion to amend the complaint, nor did they respond to her opposition. The Court found this motion suitable for submission on the pleadings, vacated the November 20, 2007 hearing pursuant to Local Rule 78-230(h), and issues the following order.
Discussion
Insufficiency of Process and Leave to Amend
Respondents move to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(4), for insufficiency of process. Respondents argue that Ms. Valencia De Gomez failed to serve the United States properly, because while Ms. Valencia De Gomez challenges an adjudication pending before the Fresno field office of USCIS, she served the former District Director of the San Francisco office in violation of Fed.R.Civ.P. 4(i)(2)(A). Respondents further contend that Ms. Valencia De Gomez failed to serve the United States Attorney for the Eastern District of California, in violation of Fed.R.Civ.P. 4(i)(1)(A).
In response, Ms. Valencia De Gomez admits she did not serve the United States properly. Ms. Valencia De Gomez moves to amend the complaint to add the proper parties and cure the failure to serve all persons required by Fed.R.Civ.P. 4 and pursuant to Fed.R.Civ.P. 19(a). Respondents did not oppose Ms. Valencia De Gomez's motion.
Leave to amend lies within the sound discretion of this court, with its purpose to facilitate decisions on the merits rather than on the pleadings or technicalities. United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Fed.R.Civ.P. 4(i)(3)(A) provides that a court "shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve all persons required to be served in the action governed by Rule 4(i)(2)(A), if the [petitioner] has served . . . the Attorney General of the United States" (emphasis added). Here, Ms. Valencia De Gomez did serve properly the United States Attorney General but needs a reasonable time to cure the insufficient service of the local United States Attorney and the District Director of the USCIS Fresno field office. See also, Fed.R.Civ.P. 21, 19(a).
Subject Matter Jurisdiction
Because this Court grants Respondents' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(4), the Court does not reach Respondents' motion based on Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Respondents may re-file any outstanding motions in response to Ms. Valencia De Gomez's first amended complaint, to be filed pursuant to this Court's order below.
Conclusion
For the foregoing reasons, this Court:
1. GRANTS Respondents' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(4) (Doc. 6);
2. GRANTS Ms. Valencia De Gomez's motion for leave to amend her complaint (Doc. 7);
3. ORDERS Ms. Valencia De Gomez to file a first amended complaint on or before December 14, 2007; and
4. ORDERS Ms. Valencia De Gomez, on or before January 7, 2007, to serve the United States properly and to file papers to prove such service.
IT IS SO ORDERED.