Cedillo-Vargas et al v. Johnson et al, No. 3:2016cv02964 - Document 11 (S.D. Cal. 2019)
Court Description: ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS MOTION TO DISMISS AND GRANTING PLAINTIFF LEAVE TO AMEND re 7 Motion to Dismiss for Lack of Jurisdiction. Defendants Michael R. Pompeo and Leticia Rodriguez are hereby DISMISSED WITHOUT PREJUDICE. Plaintiffs shall file an amended complaint with the Court on or before September 1, 2019. Signed by Judge Barry Ted Moskowitz on 7/29/2019. (sjm)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:16-cv-02964-BTM-NLS RUFINO CEDILLO-VARGAS; and MARIA DEL CARMEN CEDILLO, 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiffs, v. KEVIN K. MCALEENAN, Acting Secretary, Department of Homeland Security; KENNETH T. CUCCINELLI, Acting Director, U.S. Citizenship and Immigration Services; ALANNA Y. OW, District Director, USCIS Services, San Diego, California; LETICIA RODRIGUEZ, Immigration Inspector; and MICHAEL R. POMPEO, Secretary, Department of State, ORDER GRANTING IN PART, DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND GRANTING PLAINTIFF LEAVE TO AMEND [ECF No. 7] Defendants. 25 26 27 28 In their complaint, Plaintiffs nebulously allege they have been harmed by the actions and inactions of Defendants in relation to a petition for classification as alien relative (the “Form I-130”) filed by naturalized citizen Plaintiff Rufino Cedillo- 1 3:16-cv-02964-BTM-NLS 1 Vargas (“Cedillo-Vargas”) on behalf of his daughter, alien Plaintiff Maria Del 2 Carmen Cedillo (“Cedillo”), and Cedillo’s subsequent application to register 3 permanent residence or adjust status (the “Form I-485”, and together with Form I- 4 130, the “Forms”). 5 improperly classified her as an “inadmissible alien”1 – and removed her from the 6 United States on two separate occasions – based upon the erroneous reports of 7 an immigration inspector, Defendant Leticia Rodriguez, who stated that Cedillo 8 misrepresented she was a United States citizen when she applied for admission 9 at the U.S./Mexico border in January 2003. (Id.) Plaintiffs allege that, based upon 10 Defendant Rodriguez’s erroneous report, Defendants have revoked – or were 11 otherwise involved in the revocation of – the prior approvals of the Forms and have 12 removed Cedillo from the United States on two separate occasions. (Id.) Cedillo 13 was allegedly denied assistance of counsel and an opportunity to contest the 14 erroneous report or revocations before the approvals were revoked or she was 15 removed from the United States. 16 judgments, writs of mandamus, and relief under the Administrative Procedures Act, 17 the majority of which appear directed at challenging the erroneous report, the 18 revocation of prior-approval of the Forms, and Cedillo’s classification as 19 inadmissible. (Id.) Further, Plaintiff seeks an order from this Court compelling 20 Defendants to, inter alia, issue Cedillo a visa and “prove that Plaintiff [Cedillo] 21 made a false claim of U.S. citizenship by presenting evidence.” (Id. at 12-13.) (ECF No.1.) Plaintiffs further allege Defendants have (Id.) Plaintiffs seek various declaratory 22 Defendants subsequently moved to dismiss Plaintiffs’ complaint. (ECF No. 23 7.) In their motion to dismiss, Defendants argue the Court lacks subject-matter 24 25 26 27 28 Generally, aliens that are deemed “inadmissible” are ineligible to receive a visa or otherwise be admitted to the United States. 8 U.S.C. § 1182(a). False representation of United States citizenship by an alien is grounds for classification as inadmissible. Id. at (a)(6)(C)(ii). 1 2 3:16-cv-02964-BTM-NLS 1 jurisdiction over this matter “because the case or controversy requirement of Article 2 III of the Constitution is not satisfied.” 3 Defendants’ competing factual recitation and evidence attached in support thereof; 4 which controverts many of the factual predicates of Plaintiffs’ allegations and 5 causes of action.2 6 applications for permanent residence were made through a Form I-485 which can 7 only be filed with and adjudicated by USCIS[,]” Cedillo “has only applied for 8 adjustment of status through UCSIS and has not pursued an immigrant visa 9 through the State Department[,]”and, “[a]ccording to . . . Cedillo’s alien file, the only 10 involvement of the State Department was the initial forwarding of an I-130 because 11 Ms. Cedillo may have indicated she wanted to apply for an immigrant visa from 12 abroad.” (Id. at 6.) Defendants also argue that Defendant Rodriguez should be 13 dismissed as an improperly named defendant because, “[t]o the extent that 14 Plaintiffs seek judicial review of State Department or USCIS action or inaction 15 relating to her I-130s, this is not relief that [Defendant] Rodriguez . . . can provide” 16 and, [t]o the extent that Plaintiffs are challenging the finding of an oral false claim 17 to U.S. Citizenship in the expedited removal order processed by Ms. Rodriguez on 18 January 14, 2003, the Court lacks jurisdiction to review that finding.” (Id. at 9 (citing 19 8 U.S.C. §§ 1252(e)(1) & (2).) Finally, Defendants argue that the State Deparment 20 and Defendant Rodriguez should be dismissed for lack of personal jurisdiction, 21 insufficiency of process, and/or insufficiency of service of process because 22 Plaintiffs have failed to properly effectuate service of process on the State (Id. at 5.) This argument relies on In particular, Defendants assert “both of . . . Cedillo’s 23 24 25 26 27 28 “[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947); and Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir.1983)). 2 3 3:16-cv-02964-BTM-NLS 1 Department and Defendant Rodriguez. (Id. at 6-8 (citing FED. R. CIV. P. 4(i)(2)); 2 see also ECF No. 4 (Order to show cause why case should not be dismissed for 3 failure to timely serve Defendants); ECF Nos. 5 & 5-1 (Plaintiffs’ response to Order 4 to show cause and affidavit of service in support thereof).) 5 In their response to Defendants’ motion to dismiss, Plaintiffs appear to 6 acquiesce to Defendants’ factual assertion “that the State Department did not 7 adjudicate the [Forms] that are in controversy” and state that “there is no opposition 8 to [the] dismiss[al] of [the] State Department.” (ECF No. 8, at 1.) Accordingly, the 9 Court dismisses, without prejudice, Defendant Michael R. Pompeo, in his official 10 capacity as Secretary of the Department of State. 11 Plaintiffs argue against the dismissal of Defendant Rodriguez, however, 12 asserting that she “has caused harm to the Plaintiffs and should not be dismissed 13 as she is an indispensable party who as an employee of the Department of 14 Homeland Security caused harm to Plaintiff.” (ECF No. 8, at 2 (citing Bivens v. Six 15 Unknown Agents, 403 U.S. 388 (1971).) Yet Plaintiffs have not sought monetary 16 damages from Defendant Rodriguez, nor have they asserted a cause of action that 17 could be considered to seek such relief from Defendant Rodriguez. 18 Plaintiffs have not even named Defendant Rodriguez in her individual capacity in 19 their complaint. See Solida v. McKelvey, 820 F.3d 1090, 1093–95 (9th Cir. 2016) 20 (“The only remedy available in a Bivens action is an award for monetary damages 21 from defendants in their individual capacities. . . . Bivens is both inappropriate and 22 unnecessary for claims seeking solely equitable relief against actions by the 23 federal government. By definition, Bivens suits are individual capacity suits and 24 thus cannot enjoin official government action. . . . There is no such animal as a 25 Bivens suit against a public official tortfeasor in his or her official capacity. An 26 action against an officer, operating in his or her official capacity as a United States 27 agent, operates as a claim against the United States.” (internal quotations and 28 citations omitted)). Further, because Plaintiffs seek only equitable relief requiring Indeed, 4 3:16-cv-02964-BTM-NLS 1 official government action, which Defendant Rodriguez is powerless to provide in 2 her individual capacity, a Bivens claim against Defendant Rodriguez is 3 unnecessary. See id. at 1095–96 (9th Cir. 2016) (“In this case, only the United 4 States—through its officers—has the power to take the action that Roca Solida 5 seeks. . . . A Bivens action is not necessary in suits, such as this one, which seek 6 equitable relief against the federal government, because the Administrative 7 Procedure Act waives sovereign immunity for such claims.”). Moreover, because 8 Plaintiffs have already named a superior official of the agency that employed 9 Defendant Rodriguez as a defendant, any official capacity claims against 10 Defendant Rodriguez are redundant, duplicative, or otherwise unnecessary. See 11 id. at 1095 (“An action against an officer, operating in his or her official capacity as 12 a United States agent, operates as a claim against the United States.”); Sherman 13 v. Cty. of Maui, 191 F. App'x 535, 537 (9th Cir. 2006) (“The district court properly 14 recognized that Sherman's claims . . . against County officials in their official 15 capacity were effectively claims against the County itself, and thus the individual 16 defendants were duplicative.” (citing Brandon v. Holt, 469 U.S. 464, 471–72 17 (1985))). Accordingly, the Court dismisses Defendant Rodriguez as a duplicate 18 defendant.3 19 20 21 22 23 24 25 26 27 28 3 As the Court has dismissed Defendants Pompeo and Rodriguez and none of the remaining defendants contest personal jurisdiction, process, or service of process on them in their present motion to dismiss, the Court need not reach their arguments regarding improper service of process on Defendants Pompeo and Rodriguez. (See ECF No. 9, at 4 (“Because Plaintiffs have agreed to dismiss the State Department from the case, it no longer needs to be served. USCIS did not contest proper service. However, service was opposed on behalf of former INS Immigration Inspector [Defendant] Rodriguez in her official capacity.” (internal citations omitted)).) See also FED. R. CIV. P. 12(h)(1). Nevertheless, Plaintiffs’ response to the Court’s Order to Show Cause reveals that Plaintiffs may not have properly effectuated service of process in this matter upon one or more of the original defendants. (See ECF Nos. 4, 5, & 5-1.) Accordingly, to the extent that 5 3:16-cv-02964-BTM-NLS 1 Finally, the Court observes that, because Plaintiffs’ original complaint 2 focused heavily upon the conduct of the State Department, it is unclear what 3 conduct Plaintiffs are challenging, the claims they intend to pursue, and what relief 4 they seek in light of the instant dismissal of the State Department. To the extent 5 that Plaintiffs seek to attack the underlying removals or the findings associated 6 therewith, the Court’s authority to review those removals and findings is highly 7 circumscribed. See 8 U.S.C. § 1252. Nevertheless, the Court disagrees with 8 Defendants’ argument that all theories of recovery alleged and relief requested by 9 Plaintiffs fundamentally rely upon Plaintiffs’ original factual assertions regarding 10 the State Department and that the Court lacks subject matter jurisdiction on the 11 claims against the remaining defendants. While it is true that the complaint is 12 inartfully pled and fails to articulate claims with sufficient clarity to allow the 13 remaining defendants to reasonably frame a responsive pleading thereto, the 14 Court believes that a live controversy against the remaining defendants over which 15 this Court would have jurisdiction may be buried within the factual predicates set 16 forth in the complaint.4 Because the Court does not believe that cognizable claims 17 are immediately apparent from the face of the complaint, however, the Court will 18 require Plaintiffs to replead pursuant to Federal Rule of Civil Procedure 12(e) so 19 as to ensure Defendants (and the Court) are afforded “fair notice of what the 20 21 22 23 24 25 26 27 28 Plaintiffs intend to add any new defendants in their forthcoming amended complaint, the Court reminds Plaintiffs that they must satisfy any and all requirements for proper service of process with regards to such defendants or risk their dismissal. See, e.g., FED. R. CIV. P. 12(i)(2) (“To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.” (emphasis added)). 4 Notably, in their response to Defendants’ motion to dismiss, Plaintiffs requested leave to amend in the event the Court granted any part of Defendant’s motion. (ECF No. 8, at 3.) 6 3:16-cv-02964-BTM-NLS 1 claim[s are] and the grounds upon which [they] rest[ ].” Bell Atl. Corp. v. Twombly, 2 550 U.S. 544, 555 (2007) (internal citations and alterations omitted); see also 3 Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1275 (11th Cir. 2006) 4 (District courts have a “supervisory obligation to sua sponte order repleading 5 pursuant to Federal Rule of Civil Procedure 12(e) when a shotgun complaint fails 6 to link adequately a cause of action to its factual predicates.”). In repleading, 7 Plaintiffs must make clear the specific conduct they are challenging, the claims 8 they are pursuing, and the relief they are requesting against DHS and USCIS and 9 any other defendants they may properly add in their amended complaint. 10 Therefore, in summary, the Court GRANTS IN PART, DENIES IN PART 11 Defendants’ motion to dismiss (ECF No. 7.) Defendants Michael R. Pompeo and 12 Leticia Rodriguez are hereby DISMISSED WITHOUT PREJUDICE. Plaintiffs shall 13 file an amended complaint with the Court on or before September 1, 2019 that 14 cures the deficiencies identified in this Order; Plaintiffs are warned that their failure 15 to file an amended complaint on or before September 1, 2019 may result in the 16 dismissal of this action without further notice. 17 IT IS SO ORDERED. 18 19 Dated: July 29, 2019 20 21 22 23 24 25 26 27 28 7 3:16-cv-02964-BTM-NLS
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