The opinion of the court was delivered by: Marvin E. Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Abdul Rahman Panjwani filed this lawsuit against U.S. Attorney General, Eric Holder, Jr., Secretary of the U.S. Department of Homeland Security, Janet Napolitano, and Deputy Director of the U.S. Citizenship and Immigration Services ("USCIS") Nebraska Service Center, Marilyn P. Wiles (collectively "Defendants"), seeking review of USCIS' denial of an I-140 petition in 2007. Defendants filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. Panjwani did not object to Defendants' motion, and instead, nine days after his response was due, filed a motion for leave to amend his original complaint. Defendants oppose Panjwani's request to amend, arguing that the request is untimely, and renewing their argument that Panjwani has not established jurisdiction. We agree that allowing the proposed amended complaint would be futile and thus deny the motion to amend. We also grant, without prejudice, Defendants' motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.
On June 16, 2006, Panjwani filed an I-140 petition with the USCIS. (Am. Compl. ¶ 2.) An I-140 petition is a means by which a U.S. employer, pursuant to 8 U.S.C. § 1153(b)(3), can procure an immigrant visa for a potential employee who will fill a position for which there are not available workers in the United States. Panjwani filed the petition on behalf of Karim, Inc., with Abdul Hussain Ilmu Sadikeen as the beneficiary. (Id.) USCIS denied the petition on April 26, 2007, and a final decision was entered. (Id. ¶ 4.)
On August 6, 2010, more than three years later, Panjwani filed a petition for review in the district court, alleging that the USCIS decision "was not supported by substantial evidence." (Compl. ¶ 1.) Panjwani said little more in his initial complaint, adding only that we have jurisdiction under 8 U.S.C. § 1421(c), and that "[t]o date, no court has upheld the validity of the Order." (Id. ¶¶ 2--3.) Defendants filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and, alternatively, for lack of subject matter jurisdiction under Rule 12(b)(1), arguing that the jurisdictional statute cited by Panjwani pertains only to naturalization applications. (Mem. in Supp. of Mot. to Dismiss at 1--4.)
Panjwani had until February 7, 2011 to oppose Defendants' motion (Dkt. No. 18), but failed to respond. Nine days after this deadline, Panjwani filed a motion to amend his complaint. (Dkt. No. 19.) Panjwani's proposed amended complaint claims that we have jurisdiction over this case under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. (Am. Compl. ¶ 1.) It further alleges that Panjwani filed the complaint on behalf of employer Karim, Inc. and beneficiary Sadikeen, seeking to classify Sadikeen as an employment-based immigrant. (Id. ¶¶ 2--3). The proposed complaint expands on the allegations concerning USCIS's denial of the I- 140 petition, claiming that its decision "was not supported by substantial evidence and was otherwise not in accordance with the law." (Id. ¶ 5 (emphasis added).) The complaint concludes by claiming that "[a]ll administrative remedies have been exhausted." (Id. ¶ 6.) While Panjwani's amended complaint is twice the length of the original complaint-six lines instead of three-it still offers little detail about Panjwani's interest in the lawsuit, including any information regarding his relationship to Karim, Inc. or Sadikeen, or any additional details concerning the USCIS decision.
Defendants filed a motion in opposition to Panjwani's motion for leave to amend, arguing that: (1) the motion is untimely; and (2) allowing the amendment would be futile for lack of subject matter jurisdiction and standing. (Opp'n at 1.) Although Panjwani had until March 7, 2011 to file a reply in support of his motion (see Dkt. No. 21), he has declined to do so.
I. Panjwani's Motion to Amend
Federal Rule of Civil Procedure 15(a) provides, in operative part,
that "[a] party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) . . . 21 days after
service of a motion under Rule 12(b)." Fed. R. Civ. P.
15(a)(1)(A)--(B). Rule 15 further instructs that in all other cases
the party must obtain consent either from the adverse party or from
the court, which should be freely given when justice requires. Fed. R.
Civ. P. 15(a)(2). In making this assessment, "courts in their sound
discretion may deny a proposed amendment if the moving party has
unduly delayed in filing the motion, if the opposing party would
suffer undue prejudice, or if the pleading is futile." Campania Mgmt.
Co. v. Rooks, Pitts & Poust, 290
F.3d 843, 849 (7th Cir. 2002). An amendment is considered futile if
it "merely restates the same
facts using different language, or reasserts a claim previously
determined," or "when it fails to state a valid theory of liability,
or could not withstand a motion to dismiss." Bower v. Jones,
F.2d 1004, 1008 (7th Cir. 1992); Williams v. USPS,873 F.2d 1069, 1072
(7th Cir. 1989) ("Failure to remedy the jurisdictional defects of a
complaint is one example of where an amendment would prove futile.").
"[A] party seeking an amendment carries the burden of proof in showing
that no prejudice will result to the non-moving party." King v. Cooke,
26 F.3d 720, 724 (7th Cir. 1994).
Defendants' filed their motion to dismiss on January 20, 2011 (Dkt. No. 17), and Panjwani's motion to amend his complaint was filed on February 16, 2011 (Dkt. No. 19), twenty-seven days later. As such, Panjwani is not entitled to amendment of his pleadings as a matter of course. As Panjwani has not obtained written leave of Defendants, he must obtain consent from this Court. Defendants argue that Panjwani's motion to amend should not be entertained at all, as his failure to respond to Defendants' motion to dismiss acts as a waiver to all claims. (Opp'n at 3.) Here, however, it is clear that Panjwani failed to respond to the motion to dismiss because he intended to file an amended complaint. Had he filed his amended complaint just eight days earlier, he could have done so as a matter of course, without leave from the court, and in accordance with the very purpose of Rule 15(a)(1)(B).*fn1 That being said, Panjwani also carries the burden of showing that the amendment will not result in undue prejudice on Defendants. While it may be arguable that an eight-day delay was excessive or unduly prejudiced Defendants, Panjwani does not address this issue, and therefore has failed to meet his burden.
Defendants also argue that allowing Panjwani to amend his complaint would be futile, for the same reasons they sought dismissal of the initial complaint. Defendants contend that Panjwani's proposed complaint establishes neither our jurisdiction, nor his standing ...