United States District Court, S.D. California
November 15, 2005.
NACHHATTAR S. CHANDI, Petitioner,
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.
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