United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion to
Dismiss the Amended Complaint and Brief in Support [DE 45],
filed by Defendants on April 21, 2018. On May 4, 2018,
Plaintiff Umera Usman filed a Motion to Strike and for a
Directed Verdict, or in the Alternative, Response in
Opposition to Defendants' Motion to Dismiss Amended
Complaint. Defendants filed a reply on May 11, 2018.
AND FACTUAL BACKGROUND
1, 2011, Plaintiff Umera Usma filed with the U.S. Citizenship
and Immigration Services (“USCIS”) Form I-130,
Petition for Alien Relative, on behalf of her husband Usman
Jahangir, a Pakistani foreign national. (ECF 23, ¶¶
1, 2). Following her husband's consular interview at the
U.S. Embassy in Islamabad, Pakistan, on April 6, 2012, the
U.S. Department of State returned Ms. Usman's Form I-130
to the USCIS for further review. Id. at ¶ 3.
submitted numerous inquiries with USCIS on the status of the
petition with no response, on April 29, 2015, Ms. Usman filed
her Complaint for Writ of Mandamus with this Court. (ECF 1);
(ECF 23, ¶ 3). Subsequently, USCIS issued two Notices of
Intent to Revoke, which Ms. Usman alleges did not contain the
requisite evidentiary support to justify revoking her
petition and contained unsubstantiated, irrelevant, and/or
patently false allegations regarding Ms. Usman's marriage
to Mr. Jahangir. (ECF 23, ¶ 4). Ms. Usman timely
responded to both Notices, supplementing the record with
documents evidencing her good faith marriage, including the
birth certificate and photographs of the couple's son.
Id. On October 28, 2015, USCIS revoked Ms.
Usman's visa petition for her husband. Id.
January 8, 2016, Ms. Usman filed an Amended Complaint,
alleging a claim under the Administrative Procedure Act
(“APA”) that the visa petition revocation was an
arbitrary and capricious agency action and that there was
unreasonable delay in the process. (ECF 23). As relief, Ms.
Usman seeks a declaratory judgment that USCIS's actions
were arbitrary, capricious, and in violation of the law and
seeks remand of the visa petition matter to USCIS and
reinstatement of Ms. Usman's revoked petition, as well as
attorney fees. Id.
Ms. Usman's petition was certified by USCIS to the Board
of Immigration Appeals (“BIA”) for administrative
review, and the administrative review and this judicial
matter proceeded simultaneously. As a result, this Court
granted numerous agreed extensions of Defendants'
deadline to respond to the Amended Complaint in this case to
allow the underlying administrative review process to run its
course. Finally, on March 26, 2018, this Court denied
Defendants' most recent request to extend their response
deadline, to which Ms. Usman had objected, and ordered
Defendants to respond to Ms. Usman's Amended Complaint on
or before April 20, 2018. Unbeknownst to the Court at that
time, on March 23, 2018, the BIA had completed its
administrative review, affirming USCIS's decision
revoking Ms. Usman's visa petition. (ECF 45, Ex. A). It
appears that no further administrative review is pending with
USCIS or BIA. (ECF 45). On April 21, 2018, Defendants filed
the instant Motion to Dismiss.
Usman asks the Court to strike Defendants' Motion to
Dismiss for being filed one day late. Defendants did not file
a motion for extension of time but rather included a footnote
in the Motion to Dismiss explaining that Defendants'
counsel had just returned from a multi-day work trip and had
to care for his sick daugter. Ms. Usman argues that, contrary
to Defendants' assertion in the footnote, Ms. Usman is
prejudiced by the delay because it is one more day that she
is separated from her husband.
Rule of Civil Procedure 6(b) requires that, “[w]hen an
act . . . must be done within a specified time, the court
may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because
of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). The
determination of excusable neglect is “at bottom an
equitable one, taking account of all relevant circumstances
surrounding the party's omission.” Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 395-96 (1993). Courts consider “the danger of
prejudice to [the nonmovant], the length of the delay and its
potential impact on judicial proceedings, the reasons for the
delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good
faith.” Raymond v. Ameritech Corp., 442 F.3d
600, 606 (7th Cir. 2006) (citing Pioneer, 507 U.S.
at 395). In addition, “context matters in determining
excusable neglect, including whether the movant exhibited
dilatory behavior.” Kane v. Fin. of Am. Reverse,
LLC, No. 117-CV-2266, 2018 WL 2001810, at *1 (S.D. Ind.
Apr. 30, 2018) (citing Blue v. Hartford Life &
Accident Ins. Co., 698 F.3d 587, 593-94 (7th Cir.
instance, Defendants have shown excusable neglect for
responding to the Complaint one day late. The one-day delay
is minimal, Defendants have not exhibited dilatory behavior
throughout this litigation or in this instance, Defendants
had good reason for the minimal delay with no evidence of bad
faith, and the Court has a strong preference for resolving
claims on their merits, rather than by default, when
appropriate. Therefore, the Court denies the Motion to
Strike. Defendants are cautioned that they should have filed
a separate motion for extension of time.
to Federal Rule of Civil Procedure 12(b)(1), Defendants move
to dismiss Ms. Usman's Amended Complaint for lack of
subject matter jurisdiction. Ms. Usman challenges the
revocation of a Form I-130 Petition for Alien Relative, and
Defendants contend that visa petition revocation is a
discretionary agency determination that is not subject to
judicial review. Ms. Usman responds that the merits of the
underlying revocation decision justify judicial review.
Rule of Civil Procedure 12(b)(1) requires a court to dismiss
a cause of action when the court lacks subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). The “district
court must accept as true all well-pleaded factual
allegations, and draw reasonable inferences in favor of the
plaintiff.” Ezekiel v. Michel, 66 F.3d 894,
897 (7th Cir. 1995). “In all cases, the party asserting
federal jurisdiction has the burden of proof to show that
jurisdiction is proper.” Travelers ...