United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
WILLIAM L. OSTEEN, JR., DISTRICT JUDGE
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. (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.
FACTUAL BACKGROUND AND PRIOR LITIGATION
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
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.)
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
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.
JURISDICTION AND VENUE
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.
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.) 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.
MOTION FOR DEFAULT JUDGMENT
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)).
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.
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).
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.
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
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
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).
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.
MOTION TO DISMISS
Standard of Review
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.
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.
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,
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).)
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.
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 ...