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Ashby v. United States Department of State

United States District Court, M.D. North Carolina

September 17, 2019




         Now before this court are pro se Plaintiffs' motion for default judgment, (Doc. 7), and Federal Defendants' motion to dismiss for failure to state a claim.[1] (Doc. 10.) Plaintiffs have also filed numerous other motions, notices, and requests for production. For the reasons stated herein, the court finds that Plaintiffs' motion for default judgment should be denied, Defendants' motion to dismiss should be granted, Plaintiffs' claims should be dismissed, and Plaintiffs' miscellaneous other motions should be denied.


         Plaintiff Shon Ashby (“Ashby”) is “a[n] American business owner” who “seeks . . . to train and educate, Plaintiff [Jhonier Alonso Rojas] Herrera, in the areas of business [and] religious training.” (Pls.' Resp. to Defs.' Mot. to Dismiss (“Pls.' Resp.”) (Doc. 14) ¶ 27.) Plaintiff Jhonier Alonso Rojas Herrera (“Herrera”) is, apparently, a resident and citizen of Colombia and Ashby's “friend/religious partner.” See Ashby v. U.S. Dep't of State, Docket No. 3:16-cv-00585-FDW-DCK, 2017 WL 1363323, at *1 (W.D. N.C. Apr. 12, 2017) (“Ashby I”). Ashby sponsored Herrera for a B-1 visa and paid for the application, “so that Plaintiff Herrera could come to the United States, as a student, and take part in Plaintiff Ashby's training and religious tenants [sic], etc.” (Pls.' Resp. (Doc. 14) ¶ 32.) Herrera was allegedly denied a visa, “causing . . . Plaintiff Ashby financial harm” and depriving Ashby of the opportunity to provide religious instruction to Herrera. (Id. ¶ 30.) Plaintiffs are proceeding pro se.

         While this court does not necessarily agree fully with Defendants' contention that “Ashby appears to be reasserting claims and arguments raised in earlier litigation, ” (Defs.' Br. in Supp. of Mot. to Dismiss (“Defs.' Br.”) (Doc. 11) at 2), Plaintiffs' claims are at least closely related to an earlier lawsuit filed in the Western District of North Carolina. See Ashby I, 2017 WL 1363323, at *1 (“Plaintiff alleges that a consular office in Bogota, Columbia denied a nonimmigrant tourist visa to Plaintiff's friend/religious partner, Jhonier Alonso Rojas Herrera . . ., because Jhonier did not overcome the presumption of immigrant intent.”) (internal punctuation omitted). The principal, and perhaps only, distinction between Ashby I and this case is not factual, but rather Plaintiffs' allegation in this case that the visa process is facially discriminatory based on age and that Herrera's visa adjudication therefore implicates the constitutional right of equal protection. In Ashby I, Ashby alleged that Herrera's visa application was reviewed “in an indifferent and reckless manner” and that this review “placed a substantial burden upon the Plaintiff's fundamental liberties.” 2017 WL 1363323, at *1. It appears that Ashby is now challenging that very same visa denial on age discrimination and other grounds. (See Complaint (“Compl.”) (Doc. 1) ¶¶ 5-7, 20.)

         The district court in Ashby I concluded that Herrera's visa was properly denied, see 2017 WL 1363323, at *3, and that decision was promptly affirmed by the Fourth Circuit Court of Appeals, see Ashby v. U.S. Dep't of State, 697 Fed.Appx. 219 (4th Cir. 2017). It appears to this court that Ashby should be collaterally estopped from again challenging the denial of Herrera's visa because he had a “full and fair opportunity to litigate the issue” in Ashby I and received a final judgment. See In re Microsoft Corp. Antitrust Litigation, 355 F.3d 322, 326 (4th Cir. 2004) (setting forth the test for collateral estoppel). This court, frankly, finds it both disrespectful to other litigants and wasteful of judicial resources that Ashby now seeks a “second bite at the apple” by bringing the same challenge under the guise of different constitutional protections.

         Defendants have not argued that collateral estoppel applies. While aware of its authority to consider sua sponte whether collateral estoppel should bar the claims in this case, see, e.g., Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006), this court will nevertheless address the motion to dismiss and complaint on the merits.


         This court has subject matter jurisdiction over Plaintiffs' visa-related challenges because they arise under the United States Constitution. 28 U.S.C. § 1331; see also Brown v. Schlesinger, 365 F.Supp. 1204, 1206 (E.D. Va. 1973). When a federal court has federal question jurisdiction over some claims, it may exercise supplemental jurisdiction over all claims that “form part of the same case or controversy.” 28 U.S.C. § 1367; see also Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 616 (4th Cir. 2001). Claims are part of the same “case or controversy” when they “derive from a common nucleus of operative fact . . . such that [the plaintiff] would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). This court is satisfied that the pendant state-law defamation claim against Defendant Stacey I. Young (“Young”) arises from the same nucleus of operative fact - namely, the circumstances surrounding Herrera's visa denial. Therefore, this court has supplemental jurisdiction over the defamation claim.

         Defendants argue that “Plaintiffs have alleged no facts showing that venue is proper here in the Middle District of North Carolina” and that the court is therefore free to transfer this case to the Western District of North Carolina, where venue is apparently proper because the Ashby I court considered the merits of Plaintiffs' prior claims. (Defs.' Br. (Doc. 11) at 16 n.10.)[2] This court agrees that the complaint fails to make any allegation that venue is proper in this judicial district. However, in the interest of liberally construing a pro se complaint and because Defendants have proceeded to argue that the claims should be dismissed on substantive legal grounds, this court will assume for argument that venue is proper in the Middle District of North Carolina.


         This court may enter default judgment “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed.R.Civ.P. 55(a). The Fourth Circuit has “repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits.” Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). “A court must ‘exercise sound judicial discretion' in deciding whether to enter default judgment, and ‘the moving party is not entitled to default judgment as a matter of right.'” Reynolds Innovations, Inc. v. E-CigaretteDirect, LLC, 851 F.Supp.2d 961, 962 (M.D. N.C. 2012) (quoting EMI April Music, Inc. v. White, 618 F.Supp.2d 497, 505 (E.D. Va. 2009)).

         Plaintiffs filed their complaint in this matter on July 12, 2018, and a summons issued to Defendants on that same day. (See Complaint (“Compl.”) (Doc. 1); Doc. 4.) Plaintiffs then filed an affidavit of service, (see Doc. 6), on September 12, 2018, asserting that all Defendants had been served as of August 30, 2018.

         Plaintiffs moved for a default judgment pursuant to Fed.R.Civ.P. 55 on October 10, 2018. (See Doc. 7.) Attorney Aaron S. Goldsmith then entered an appearance on behalf of Defendants on October 16, 2018, (Doc. 8), and on October 17, 2018, filed both a motion to dismiss, (Doc. 10), and a response to the motion for default judgment, (Doc. 12). Plaintiffs were permitted to reply “within 14 days after service of the response, ” LR 7.3(h), which they failed to do. Instead, Plaintiffs filed a second motion for default judgment on November 20, 2018, (Doc. 24), to which Defendants responded, (Doc. 34), and Plaintiffs replied, (Doc. 37).

         The second motion for default judgment does not appear to raise any new legal arguments related to a possible default by Defendants, but rather addresses the merits of Plaintiffs' claims. (See Doc. 24.) To the extent the second motion actually asks for an entry of default against Defendants due to failure to respond, it is duplicative of Plaintiffs' first motion. This court finds that the second motion for default judgment, (Doc. 24), should be denied as moot. This court will therefore not consider the briefing of that motion.

         Plaintiffs argue in their first motion that “Defendants were to respond by October 9th 2018, ” (Doc. 7 ¶ 3), and that a default judgment is appropriate because “Defendants have failed to respond to the Plaintiff's complaint, by the dates issued by [the] Court.” (Id. ¶ 6.) Defendants contend that they responded by filing a motion to dismiss “within 60 days after service on the United States attorney” for the judicial district where the action was commenced, as required by Fed.R.Civ.P. 12(a)(2). (Doc. 12 at 1.)

         Plaintiffs' affidavit indicates that Matthew G.T. Martin, United States Attorney for the Middle District of North Carolina, was served on August 17, 2018. (Doc. 6 at 5.) Therefore, pursuant to Rule 12(a)(2), Defendants had until October 16, 2018, to respond. See, e.g., Treece v. Colvin, No. 1:14-CV-1077, 2016 WL 225698, at *3 (M.D. N.C. Jan. 19, 2016) (explaining the 60-day rule for lawsuits against government agencies). Defendants filed their motion to dismiss on October 16, 2018, within the time permitted by the Federal Rules.[3]

         Even had Defendants failed to respond within the allotted time, Fed.R.Civ.P. 55(d) imposes an additional evidentiary requirement to obtain a default judgment against the United States. The plaintiff must “establish[] a claim or right to relief by evidence that satisfies the court.” Fed.R.Civ.P. 55(d). The Rule 55(d) inquiry implicates the substance of Plaintiffs' claims. Here, this court finds that Plaintiffs have failed to put forward sufficient evidence at the current stage of the litigation. Further, “courts have held that entry of default judgment against the United States will not be based simply on a failure to file an answer or responsive pleading.” Sun v. United States, 342 F.Supp.2d 1120, 1124 (N.D.Ga. 2004). Even after a default is entered, courts will generally set it aside if the government later appears and files a responsive pleading. See Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977).

         This court finds that Defendants have responded within the sixty-day period permitted by Fed.R.Civ.P. 12(a)(2) and that Plaintiffs' motion for default judgment should be denied.


         A. Standard of Review

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal punctuation omitted). In other words, the plaintiff must plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable” and must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         When ruling on a motion to dismiss, this court must accept the complaint's factual allegations as true. Iqbal, 556 U.S. at 678. Further, “the complaint, including all reasonable inferences therefrom, [is] liberally construed in the plaintiff's favor.” Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004) (citation omitted). Despite this deferential standard, a court will not accept legal conclusions as true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at 678.

         The pleading standards are relaxed for pro se plaintiffs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (stating that pro se complaints must be “liberally construed”); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, pro se plaintiffs are still required to plead facts that fairly put the defendant on notice of the nature of the claims and “contain more than labels and conclusions.” Giarratano v. Johnson, 521 F.3d 298, 304 & n.5 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         B. Plaintiffs' Claims

         This court interprets the pleadings in this case to allege four separate claims. First, Plaintiffs bring a facial challenge to the Foreign Affairs Manual (“FAM”) regulations implementing the Student and Exchange Visitor Program that grants visas to foreign students for study in the United States. Specifically, the regulations acknowledge that a student is generally younger than the average visa applicant and thus is less likely to be able to demonstrate substantial concrete “ties” to his or her home country (such as property ownership, a spouse or children, and long-term employment), which are normally required to rebut the presumption of “immigrant intent.” See 9 FAM 402.5-5(E)(1). Plaintiffs contend that the FAM regulations violate equal protection because they discriminate on the basis of age by creating a stricter “immigrant intent” inquiry for older non-student visa applicants. (See Compl. (Doc. 1) ¶¶ 6-7; Pls.' Resp., Attach. Two (Doc. 14-1).)

         Plaintiffs request an order relating to “Counselor officers in Bogota, Colombia.” (Compl. (Doc. 1) ¶ 20.) However, Plaintiffs then assert in their response that they have not asked for “[j]udicial review of a counselor's visa denial.” (Pls.' Resp. (Doc. 14) ¶¶ 9-10.) And Plaintiffs repeatedly refer to regulations that are “discriminat[ory] on [their] face.” (See Id. ¶ 17, Attach. Two.) Therefore, this court concludes that Plaintiffs intend to bring a facial challenge to the FAM regulations under the equal protection clause.

         Second, Plaintiffs argue that the FAM regulations burden their right to religious expression under the free exercise clause and deny them equal treatment as compared to other religious groups and institutions. (Compl. (Doc. 1) ¶¶ 8-9.) As explained more fully in Plaintiffs' response, Plaintiffs contend that religiously-affiliated colleges such as Boston College and Liberty University receive unconstitutional benefits under the regulations because they sponsor only student visa applicants who are subject to a less-probing “immigrant intent” inquiry. (See Pls.' Resp. (Doc. 14) ¶ 30.) The court interprets this claim as a facial ...

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