De Santiago v. Kerry

Filing 28

ORDER DISMISSING THE ACTION Without Prejudice re 25 , signed by Magistrate Judge Jennifer L. Thurston on 12/9/2014. CASE CLOSED. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BIBIANA DE SANTIAGO,
Plaintiff,

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v.
JOHN KERRY, Secretary of State,
Defendant.

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Case No.: 1:14-cv-00445 - JLT
ORDER DISMISSING THE ACTION WITHOUT
PREJUDICE
(Doc. 25)

Plaintiff Bibiana De Santiago filed a motion to dismiss on December 14, 2014. (Doc. 25.)

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Plaintiff initiated this action seeking judicial review of the decision to revoke a passport issued by the

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United States, asserting the revocation violated her constitutional rights. (See Doc. 3.) In addition,

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Plaintiff sought a declaratory judgment that she is a citizen of the United States, entitled to a passport.

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(Id. at 6, ¶¶ 24-25.) Plaintiff asserts her claims were based upon “on her honest belief that she was

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born in the United States.” (Doc. 25 at 2.) However, Plaintiff learned at her mother’s deposition on

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November 17, 2014 that she was not born in the United States. (Id.; Doc. 26 at 2.) Accordingly,

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Plaintiff “believes that the current action . . . no longer warrants litigation and seeks leave from this

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Court to dismiss the pending action.” (Doc. 25 at 2.)

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Defendant does not oppose the dismissal of the action, but asserts the Court should deny

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Plaintiff’s request for a determination the lawsuit was filed in good faith. (Doc. 26.) Defendant

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asserts he “opposes Plaintiff’s request for a credibility determination that her lawsuit ‘was filed in
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‘good faith,’” and that her “representations and assertions of good faith are irrelevant, self-serving and

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unnecessary in dismissing this action.” (Id. at 2.) In reply, Plaintiff asserts that she would be

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prejudiced without such a declaration and may “suffer the consequences of a ‘false claim of

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citizenship’ that is a ground of both inadmissibility and deportability.” (Doc. 27 at 2.)
Significantly, there is insufficient evidence before the Court to determine whether the action

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was filed in good faith. Although Plaintiff learned at the deposition of her mother that she was not

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born in the United States, Plaintiff offers no explanation as to why she was unable to obtain this

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information from her own mother before filing the lawsuit. Though the Court can imagine scenarios

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under which Plaintiff would have been unable to know this information before bringing this action, it

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can think of many reasons how she could have or should have. However, the Court must rely upon

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evidence rather than its own musings. Given the lack of evidence, the Court declines to make any

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findings related to whether Plaintiff acted in good faith when she filed the complaint that initiated this

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action.
Pursuant to Rule 41 of the Federal Rules of Civil Procedure, a plaintiff may request dismissal of

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the action by the Court “on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). As

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Defendant notes, the Court does not have jurisdiction to consider the merits of an action that is rendered

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moot, because a plaintiff must present a live case or controversy. (Doc. 26 at 3, citing In re DiGiorgio,

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134 F.3d 971, 974 (9th Cir. 1998)). Although Defendant urges the Court to dismiss the action with

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prejudice (Doc. 26 at 3), the proper action when the Court lacks jurisdiction is to dismiss the action

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without prejudice. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (directing

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the district court to dismiss an action without prejudice for lack of jurisdiction).

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Based upon the foregoing, IT IS HEREBY ORDERED:

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Plaintiff’s request for declaratory judgment is DENIED;

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2.

Plaintiff’s motion to dismiss is GRANTED;

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3.

The action is DISMISSED without prejudice; and

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The Clerk of Court is DIRECTED to close this action.

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IT IS SO ORDERED.
Dated:

December 9, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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