Summary
holding that § 1447(b) confers concurrent jurisdiction upon the district court and USCIS
Summary of this case from Edobor v. OnyangoOpinion
CASE NO: 8:08-cv-885-T-23TBM.
March 26, 2009
ORDER
Pursuant to 28 U.S.C. § 636 and Local Rule 6.01(b), the defendants' "Combined Motion to Dismiss, Remand or, in the Alternative, Sever" (Doc. 20), and the plaintiffs' motion for class certification (Doc. 27) were referred to United States Magistrate Judge Thomas B. McCoun, III, to issue a report and recommendation on the motions. Following the Magistrate Judge's February 13, 2009, report and recommendation (Doc. 42), the plaintiffs objects in part (Doc. 43). The plaintiffs assert no objection to the recommended dismissal of counts two and three of the amended complaint (the "complaint") and "for the sake of judicial expedience . . . withdraw Counts II and III." However, the plaintiffs object to the Magistrate Judge's recommendation as to count one and the plaintiffs' motion for class certification. The defendants (Doc. 47) respond.
A de novo determination of those portions of the report and recommendation to which the plaintiffs object reveal that the objections either are unfounded or otherwise require no different resolution of the motion. Accordingly, the plaintiffs' objections (Doc. 43) are OVERRULED and the Magistrate Judge's report and recommendation (Doc. 42) is ADOPTED. The plaintiff's motion for class certification (Doc. 27) is DENIED. The defendants' "Combined Motion to Dismiss, Remand or, in the Alternative, Sever" (Doc. 20) is GRANTED as follows.
Counts two and three are DISMISSED for the reasons stated in the report and recommendation. As to count one, the claims of the named plaintiffs whose naturalization applications have been adjudicated — a category that now includes all the named plaintiffs — are DISMISSED pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, because the claims are moot. The Clerk is directed to terminate any pending motion and close the case.
The defendants' response includes a March 12, 2009, "Second Declaration of Kathy Redman" (Doc. 47-2), acting regional director of the U.S. Citizenship and Immigration Services stating that (in addition to the plaintiffs Ainslie, Aleman, Ali, Bello-Camp, Elsawalhi, Gomez, and Marquez) the following plaintiffs' applications for naturalization have been adjudicated: Elizabeth Adelizee (naturalized August 28, 2008); Snejana Dunn (naturalized September 30, 2008); Oleg Gulyavisky (application denied November 18, 2008); Mohamed Brimo Haek (application denied December 23, 2008); Eddy Hernandez (application denied January 15, 2009); Anton Goubrial (denied January 29, 2009). Additionally, as to the only plaintiff whose application has not been adjudicated, Ismail Elmcharfi, Director Redman states (Doc. 47-2 ¶ 10) that "USCIS has scheduled Mr. Elmcharfi to be re-fingerprinted and re-interviewed on March 14 and March 17, 2009, respectively" and that, after reviewing the results. USCIS will adjudicate Mr. Elmcharfi's application. On March 24, 2009, the defendants filed a "Status Report" attaching (Doc. 48-2) USCIS's March 18, 2009, denial of Mr. Elmcharfi's application for naturalization.
ORDERED in Tampa, Florida.