United States District Court, S.D. Florida, Miami Division
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on the Government's
Motion to Dismiss Complaint as Moot. [ECF No. 15]. The Court
has reviewed the Motion and the record and is otherwise fully
advised. For the reasons discussed below, the Motion is
December 27, 2018, Plaintiff Chaim Glik filed this one-count
Complaint seeking to compel the Government to adjudicate his
I-485 Application to Register Permanent Residence or Adjust
Status. Plaintiff's application had been pending since
May 2, 2011. [ECF No. 1 at ¶ 1]. On June 17, 2019, the
Government denied Plaintiff's I-485 application. [ECF No.
Standard of Review
motion to dismiss for lack of subject matter jurisdiction
brought pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure may present either a facial or a factual
challenge to the complaint. See McElmurray v. Consol.
Gov't, 501 F.3d 1244, 1251 (11th Cir. 2007). In a
facial challenge, a court is required only to determine if
the plaintiff has “sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in [the]
complaint are taken as true for the purposes of the
motion.” Id. at 1251. By contrast, a factual
attack “challenge[s] ‘the existence of subject
matter jurisdiction in fact, irrespective of the pleadings,
and matters outside the pleadings . . . are
considered.'” McElmurray, 501 F.3d at 1251
(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990)). In a factual attack, “no presumptive
truthfulness attaches to [a] plaintiff's allegations,
” Lawrence, 919 F.2d at 1529 (quoting
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981)), and the plaintiff bears the burden to prove the facts
sufficient to establish subject matter jurisdiction. See
OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir.
2002). Although not specifically stated, the Motion presents
a factual attack challenging the Court's subject matter
jurisdiction allowing the Court to consider matters outside
of the Complaint.
III of the Constitution limits the jurisdiction of federal
courts to actual cases and controversies.” Serrar
v. Sect'y, Dept. Homeland Security, No.
6:12-CV-1714-Orl-22KRS, 2013 WL 12323968, at *3 (M.D. Fla.
Aug. 9, 2013); see also U.S. Const., art. III,
§ 2, cl.1. “[A] case is moot when it no longer
presents a live controversy with respect to which the court
can give meaningful relief.” Soliman v. United
States ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002)
(quoting Fla. Ass'n of Rehab. Facilities, Inc. v.
Fla. Dep't. of Health and Rehab. Servs., 225 F.3d
1208, 1216-17 (11th Cir. 2000)). Accordingly, “[i]f
events that occur subsequent to the filing of a lawsuit or an
appeal deprive the court of the ability to give the plaintiff
or appellant meaningful relief, then the case is moot and
must be dismissed.” Id.
Government's denial of Plaintiff's I-485 application
renders Plaintiff's Complaint moot. Plaintiff is correct
that a district court may have jurisdiction to consider
whether the delay in adjudicating an application was
unreasonable. That relief, however, was not properly plead
nor specifically sought in the Complaint. See Sanabria v.
Chertoff, No. 08-CV-20666-ASG, 2008 WL 11333503, at *5
(S.D. Fla. 2008) (citing Tang v. Chertoff, 493
F.Supp.2d 148 (D. Mass. 2007)). In opposition to the
Government's Motion, Plaintiff argues that the Court must
determine whether the Government's delay was willful and
unreasonable. [ECF No. 17 at 3]. However, a party may not
amend its complaint through a response to a motion to
dismiss. See Huls v. Llabona, 437 Fed.Appx. 830, 831
(11th Cir. 2011); McKally v. Perez, 87 F.Supp.3d
1310, 1317 (S.D. Fla. 2015). The proper procedure would be
for Plaintiff to file a separate action seeking the remedies
available for an unreasonable delay of adjudication.
Accordingly, Plaintiff's Complaint shall be dismissed
Plaintiff's Request for Attorney's Fees
seeks attorney's fees pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. §
2412(d)(1)(A), which allows for a party to recover
attorney's fees against the government where (1) they are
a prevailing party, (2) the government's position was not
substantially justified, and (3) such an award would not be
otherwise unjust. Here, Plaintiff is not a “prevailing
party.” A prevailing party entitled to fees is
“one who has been awarded some relief by the
court.” Buckhannon Bd. and Care Home, Inc. v. West
Virginia Dept. of Health and Human Resources, 532 U.S.
598, 604 (2001). Further, that relief must be received on the
merits of a party's claims. Id. at 603. “A
defendant's voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on
the change.” Id. at 605.
the Government adjudicated Plaintiff's application prior
to a judgment by the Court. Accordingly, there has been no
judicial action that would affect the legal relationship of
the parties to sufficiently find that Plaintiff is a
“prevailing party” for purposes of the EAJA.
it is ORDERED and ADJUDGED that the
Government's Motion to Dismiss Complaint as Moot [ECF No.
15] is GRANTED. Plaintiffs Complaint is
dismissed without prejudice. All pending motions are denied