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Glik v. United States Citizenship and Immigration Services

United States District Court, S.D. Florida, Miami Division

July 10, 2019

CHAIM GLIK, Plaintiff,



         THIS 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 GRANTED.


         On 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. 15-1].


         A. Standard of Review

         A 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.

         B. Mootness

         “Article 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.

         The 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 without prejudice.

         C. Plaintiff's Request for Attorney's Fees

         Plaintiff 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.

         Here, 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.

         Therefore, 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 ...

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