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CHANDI v. DEPARTMENT OF HOMELAND SECURITY

United States District Court, S.D. California


November 15, 2005.

NACHHATTAR S. CHANDI, Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY, Respondent.

The opinion of the court was delivered by: LARRY BURNS, District Judge

ORDER GRANTING MOTION TO DISMISS [Dkt. No. 6]

Plaintiff is an alien of the United States who complains of delay in the processing of a visa petition. He is represented by counsel in this matter, which is before the court on the United States Attorney's Motion To Dismiss, in response to this Court's Order that the government respond to the complaint. The Motion hearing date was set for November 21, 2005. The deadline for opposing the Motion passed November 7, 2005 with no response from plaintiff. "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2. [i.e., opposition or a statement of non-opposition not later than 14 calendar days prior to the noticed hearing], that failure may constitute a consent to the granting of a motion. . . ." Civ.L.R. 7.1.f.3.c. The Court construes plaintiff's failure to respond as consent to the granting of the motion.

In addition, as the government suggests, it appears this Court lacks personal jurisdiction over the defendant because there is no evidence the complaint (styled as a Petition for Writ of Mandamus, a pleading abolished by Fed.R.Civ.P. 81(b)) has been served. Finally, it appears venue is improper because the conduct complained of occurred through the California Service Center in Laguna Niguel, California, located in the Central District of California, the alien plaintiff's residence is not alleged in the complaint, and the only named defendant is the Department of Homeland Security, which is headquartered in Washington, D.C.

  For all the foregoing reasons, IT IS HEREBY ORDERED the November 21, 2005 hearing is off-calendar, and this case is dismissed in its entirety, without prejudice.

  IT IS SO ORDERED.

20051115

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