United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
James B. Zagel United States District Judge
Plaintiffs Jonathan and Stella Okere brought this action against the Department of State at the U.S. Consulate in Lagos, Nigeria, regarding a passport application that Plaintiffs filed on behalf of their putative biological son, Jonathan Okere, Jr. Alleging that the consulate had erroneously placed their son’s passport application on hold, Plaintiffs asserted the Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”), as the source of this Court’s jurisdiction, and requested mandamus relief.
This matter is presently before the Court on Defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6). Because the Court does not have jurisdiction, I am granting Defendant’s motion and dismissing Plaintiffs’ complaint.
Mr. and Ms. Okere are United States Citizens. Mr. Okere has continuously lived in the United States for the past twenty years. Ms. Okere’s place of residency is not clear from the complaint, but it appears that she has lived in both the United States and Nigeria-notably present in the United States during at least some portion of her pregnancy and present in Nigeria when her son was born.
Ms. Okere appeared at the U.S. Consulate General in Lagos, Nigeria on January 9, 2013 to apply for a Consular Report of Birth Abroad of an American Citizen of the United States (“CRBA”) and a U.S. passport for her two-month-old son. Based on the interview and documents provided, the interviewing consular officer began processing the CRBA and passport application and issued Ms. Okere a standard letter explaining that the CRBA and passport were being processed. According to the complaint, a consular officer told Ms. Okere that her son’s CRBA and passport would be approved during this visit.
When Ms. Okere was called back to the consulate to pick up the documents on February 8, 2013, a consular officer asked her several questions and advised her that a DNA test was needed to prove her maternity or Mr. Okere’s paternity. To date, Plaintiffs have not submitted the requested DNA test results.
Plaintiffs filed a previous case in federal district court on November 27, 2013, similarly alleging FTCA claims against the State Department. Plaintiffs moved to voluntarily dismiss that case on February 4, 2014, and the Court dismissed the case without prejudice on February 5, 2014. Plaintiffs filed the instant action on July 28, 2014, and served Defendants on or about February 18, 2015.
A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the Court's subject matter jurisdiction. “The party asserting federal jurisdiction bears the burden of demonstrating its existence.” Farnik v. F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013). Where, as here, the Rule 12(b)(1) jurisdictional challenge concerns the sufficiency of the allegations in the complaint regarding subject matter jurisdiction, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff. See United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (overruled on other grounds by Minn–Chem., Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012)).
A motion to dismiss under Rule 12(b)(6) does not test the merits of a claim; rather, it tests the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true, and draws all reasonable inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, “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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679.
As a basis for their claims, Plaintiffs assert the Federal Tort Claims Act, 28 U.S.C. § 1346, as the source of the Court’s subject matter jurisdiction. In the event that the FTCA does not provide the Court with jurisdiction, Plaintiffs seek leave in their response brief to amend the complaint to base jurisdiction on the federal mandamus statute, 28 U.S.C. § 1361. Because neither of these ...