UNITED STATES DISTRICT COURT NORTHERN DISTRICT NEW YORK
February 28, 2012
LUIS R. MORALES, PLAINTIFF,
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANT.
APPEARANCES: OF COUNSEL: LUIS R. MORALES, 95-A-3747 Plaintiff, Pro Se Woodbourne Correctional Facility 99 Prison Road, Box 1000 Woodbourne, NY 12788-1000 UNITED STATES DEPARTMENT OF JUSTICE JACOB M. WEINTRAUB, ESQ. Counsel for Defendant Senior Litigation Counsel Ben Franklin Station P.O. Box 868 Washington, D.C. 20044
The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this immigration action filed by Luis R. Morales ("Plaintiff") against Eric H. Holder, Jr. ("Defendant"), are Defendant's motion to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and/or 12(b)(6), and Plaintiff's cross-motion for leave to file an Amended or Supplemental Complaint pursuant to Fed. R. Civ. P. 15(a). (Dkt. Nos. 17, 18.) For the reasons set forth below, Defendant's motion is granted, and Plaintiff's cross-motion is denied.
I. RELEVANT BACKGROUND
In their motion papers, the parties have generally demonstrated an adequate understanding of the claims and factual allegations asserted in Plaintiff's Complaint, the arguments asserted for and against Defendant's motion, and the legal standards governing those claims and arguments. (Dkt. Nos. 17-19.) *fn1 As a result, the Court will not recite that information with specificity in this Decision and Order, which is intended primarily for the review of the parties.
Rather, the Court will note only as follows. Generally, Plaintiff's Complaint seeks (1) a judgment declaring as unconstitutional some or all of Section 301 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1401(a) (1952), and (2) an injunction directing the United States Congress to "redesign [Section 301] in a manner that comports with the Due Process and Equal Protection Clauses of the 5 th and 14 th Amendments to the U.S. Constitution . . . ." (Dkt. No. 1.)
In addition, generally, Defendant asserts the following three
arguments in support of his request for the dismissal of Plaintiff's
Complaint: (1) Plaintiff's Complaint must be dismissed pursuant to
Fed. R. Civ. P. 12(b)(1), because it is barred by the doctrine of
res judicata ; (2) in the alternative, Plaintiff's
Complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1),
because it is barred by the doctrine of sovereign immunity; and (3) in
the alternative, Plaintiff's Complaint must be dismissed pursuant to
Fed. R. Civ. P. 12(b)(6), because it seeks relief that the Court
cannot grant and, in any event, is moot due to Congress's amendment of
8 U.S.C. § 1401 in 1986. (Dkt. No. 17.)
Finally, generally, in his response to Defendant's motion, in addition to opposing (and sometimes conceding) Defendant's arguments, Plaintiff states, "If Plaintiff raises or addresses an issue which the moving party is not addressing, Plaintiff respectfully asks the Court to please treat and accept the issue as either a cross-motion or as a motion to amend or supplement the original complaint." (Dkt. No. 18, Attach. 1, at 2.)
A. Defendant's Motion to Dismiss
Even after construing Plaintiff's Complaint with the utmost of special liberality, and carefully scrutinizing Defendant's arguments for dismissal (and Plaintiff's arguments against dismissal), the Court concludes that Plaintiff's Complaint must be dismissed for each of the three alternative reasons offered by Defendant in his memorandum of law: (1) Plaintiff's Complaint is barred by the doctrine of res judicata ; (2) Plaintiff's Complaint is barred by the doctrine of sovereign immunity; and (3) Plaintiff's Complaint seeks relief that the Court cannot grant and, in any event, is moot due to Congress's amendment of 8 U.S.C. § 1401 in 1986. (Dkt. No. 17.)
The Court would add only five brief points. First, for the sake of brevity, the Court will assume that Plaintiff's "third party complaint" submitted "on behalf of his deceased . . . father" is not subject to dismissal based on either mootness or a lack of standing-although that fact is far from clear.
Second, although Defendant characterizes the doctrine of res judicata as warranting dismissal under Fed. R. Civ. P. 12(b)(1) under the circumstances, the Court finds that the doctrine warrants dismissal under Fed. R. Civ. P. 12(b)(6) under the circumstances. *fn2 The Court notes that, not only does Plaintiff's Complaint reference and attach a copy of the Second Circuit's Order in Morales v. Holder , No. 06-2599, 2009 WL 3645321 (2d Cir. Nov. 3, 2009), but the Court may take judicial notice of that Order under the circumstances. *fn3 Indeed, Plaintiff himself expressly asks the Court to consider this document on Defendant's motion. (Dkt. No. 18, Attach. 1, at 21.)
Third, in addition to the case cited by Defendant for the point of
law that the doctrine of res judicata bars a party
from relitigating issues that were or could have
been raised in the prior action, the Court relies on several other
cases. See Nemaizer v. Baker,
793 F.2d 58, 60 (2d Cir. 1986) ("[A dismissal with prejudice]
constitutes a final judgment with the preclusive effect of res
judicata not only as to all matters litigated and decided by it, but
as to all relevant issues which could have been but were not raised
and litigated in the suit.") (internal quotation marks omitted);
Tucker v. Arthur Andersen & Co. , 646 F.2d 721, 726-27
(2d Cir. 1981) (" Res judicata prevents the
subsequent litigation of any defense or ground for recovery that was
available to the parties in the original action, whether or not it was
actually litigated or determined . . . ."). *fn4
Fourth, in his response to Defendant's motion, Plaintiff argues that, in his prior proceeding, he did in fact raise the issues raised in this proceeding, but that the Second Circuit did not sufficiently decide those issues. (Dkt. No. 18, Attach. 1, at 29.) As an initial matter, Plaintiff's argument concedes the fact that he "could have" raised the issues in question in the prior proceeding (which is all that is necessary for the application of the doctrine of res judicata , under the circumstances). In any event, the Court finds unpersuasive Plaintiff's argument that the Second Circuit's disposition of his prior proceeding did not constitute a sufficient adjudication on the merits, for purposes of the application of the doctrine of res judicata .
Fifth, and finally, as yet a fourth alternative ground for the dismissal of Plaintiff's Complaint, the Court dismisses Plaintiff's Complaint because it does not allege facts plausibly suggesting a violation of either the Due Process Clause or Equal Protection Clause of the United States Constitution.
B. Plaintiff's Cross-Motion to Amend/Supplement
After carefully considering Plaintiff's cross-motion to amend/supplement, the Court concludes that the cross-motion must be denied on both procedural and substantive grounds.
As an initial matter, the Court notes that, had Plaintiff simply filed an Amended or Supplemental Complaint during the 21-day period following the service of Defendant's motion to dismiss on February 17, 2011 (which occurred three days after its mailing on February 14, 2011, pursuant to Fed. R. Civ. P. 6[d] and Fed. R. Civ. P. 5[b][C]), he could have done so "as a matter of course" under Fed. R. Civ. P. 15(a)(1)(B). However, Plaintiff did not do so, instead filing a cross-motion to amend/supplement on or after March 16, 2011 (Dkt. No. 18, Attach. 1, at 33 [reflecting date of notarization as March 16, 2011]). *fn5 As a result, making a cross-motion for leave to amend/supplement is the correct means by which Plaintiff should proceed under the circumstances.
Unfortunately, Plaintiff's cross-motion is procedurally improper in that it is not accompanied by either (1) an affidavit or (2) a copy of his proposed amended or supplemental complaint. N.D.N.Y. 7.1(a)(2) and (a)(4). Nor does the cross-motion "set forth specifically the proposed amendments and identify the amendments in the proposed pleading, either through the submission of a red-lined version of the original pleading or other equivalent means." N.D.N.Y. L.R. 7.1(a)(4).
In any event, even if Plaintiff's cross-motion was not plagued by these two procedural
flaws, the Court would deny that cross-motion as futile, based on the numerous substantive defects referenced above in Part I of this Decision and Order.
For each of these three alternative reasons, the Court denies Plaintiff's cross-motion for leave to amend/supplement.
ACCORDINGLY , it is ORDERED that Defendant's motion to dismiss (Dkt. No. 17) is GRANTED ; and it is further
ORDERED that Plaintiff's cross-motion for leave to amend/supplement (Dkt. No. 18) is DENIED .
The Clerk of the Court is directed to issue a judgment for Defendant and close this action and to serve this decision and order on plaintiff at both Cayuga Correctional Facility and Woodbourne Correctional Facility.
The Court certifies that any appeal from this Decision and Order would not be taken in good faith.