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United States v. Arnaout

United States District Court, N.D. Illinois, Eastern Division

November 16, 2016

ENAAM M. ARNAOUT, Defendant.


          Joan B. Gottschall United States District Judge.

         Enaam Mahmoud Arnaout became a naturalized U.S. citizen on March 10, 1994. The United States filed a five-count complaint on July 23, 2014, seeking to denaturalize Arnaout in accordance with 8 U.S.C. § 1451(a), which permits the court to set aside a naturalization order that was “illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation, ” 8 U.S.C. § 1451(a) (2012). Each count of the government's original complaint sets forth an alleged separate ground for denaturalizing Arnaout under § 1451(a). (See ECF No. 1 ¶23-64.) The court has before it the government's motion seeking leave to file an amended complaint adding an additional ground for denaturalization based on evidence that came to light during discovery. For the following reasons, the court grants the government's motion.

         I. Background

         Discovery commenced after the court denied the government's motion for judgment on the pleadings in August 2015. (See ECF No. 20 at 1 (denying motion); ECF No. 21 at 1 (setting deadline to exchange initial disclosures).) On January 5, 2016, the court granted the parties' agreed motion to extend the government's deadline to make initial disclosures and complete discovery. As a result, the government had until January 30, 2016, to make its initial disclosures; the court also set February 25, 2016, as the deadline for the government to produce certain documents and gave the parties until June 1, 2016, to complete discovery. (ECF No. 24 at 1.)

         The government filed the instant motion to amend on May 12, 2016. (ECF No. 29.) It represents that the proposed new count stems from facts learned during an interview conducted April 19, 2016, of Arnaout's former spouse, Nancy C. Noyes (“Noyes”). (Id. at 2, 5-6.) Noyes's record of sworn statement attached to the government's motion states that she married Arnaout on March 9, 1989, in Pakistan. (ECF No. 29-1 at 1.) Noyes avers that she filed for divorce from Arnaout in March 1993 because she “rarely saw him once he moved to the United States in June 1990.” (Id. at 2.) Noyes elaborates:

After I filed divorce papers with the court, I contacted someone to serve [Arnaout] and arranged to have [Arnaout] served in a hotel in Titusville, Florida, where we were staying. The process server served [Arnaout] with the divorce papers at the hotel. [Arnaout] was not happy, and said he did not want to get divorced. After [Arnaout] was served, the process server came to my home to give me a receipt for the service. In addition to the service on [Arnaout], the process server also mailed a copy of the divorce papers to a P.O. box [Arnaout] kept near Orlando, in Goldenrod, Florida. I was with him when he checked the P.O. box and received those papers as well. This happened within a week of the service at the hotel. [Arnaout] said he couldn't believe that I got him twice. He was upset about this. He begged me to rethink getting the divorce. By this point, [Arnaout] had already started moving his things out of our home. After this time, I saw him about five more times, and he moved his stuff out completely. I did not see him at all after 1994.

(ECF No. 29-1 at 2.)

         Based on Noyes's statement, the government wishes to add allegations that Arnaout was ineligible for naturalization because the requirements of neither 8 U.S.C. § 1427(a) nor 1430(a) were satisfied when he applied on April 8, 1993. (See Proposed Am. Compl. ¶¶ 11, 83-91, ECF No. 29-4.) The first of those statutes, § 1427(a), requires an applicant for naturalization to have resided “continuously, after being lawfully admitted for permanent residence, within the United States for at least five years, . . . [and to have] been physically present therein for periods totaling at least half of that time” during the same five-year period. The five-year residence requirement becomes three years for a person whose spouse is a U.S. citizen under § 1430(a), provided that the applicant, “during the three years immediately preceding the date of filing his application[, ] has been living in marital union with the citizen spouse ..... ” 8 U.S.C. § 1430(a) (1988) (listing exceptions not discussed by the parties).

         The government also alleges in its proposed amended complaint that Arnaout falsely stated that he was married to Noyes, rather than separated, in his form N-445, notice of final naturalization hearing, on March 10, 1994. (See Proposed Am. Compl. ¶¶ 16-17, 20-21, 80.) The government proposes to plead that Arnaout had separated from Noyes at least one month earlier. (Id. ¶ 28.) Arnaout acknowledges the government's contention that his Illinois divorce petition filed in August 1994 contains a statement that he and Noyes separated six months earlier, i.e., in or around February 1994.[1] (See Resp. 9-10, ECF No. 34; Proposed Am. Compl. ¶¶ 9, 17.)

         II. Legal Standard

         Arnaout urges the court to analyze the government's request for leave to amend under the two-step approach used when the deadline to amend pleadings set in a Federal Rule of Civil Procedure 16 scheduling order has passed. See, e.g., Arrigo v. Link, 836 F.3d 787, 797 (7th Cir. 2016); Adams v. Indianapolis, 742 F.3d 720, 733-34 (7th Cir. 2014) (explaining that “the district court is ‘entitled to apply the heightened good-cause standard of Rule16(b)(4) before considering whether the requirements of Rule 15(a)(2) were satisfied' when a party moves to amend a pleading after the deadline set in the scheduling order (quoting Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011))). The court set deadlines for exchanging initial disclosures and a discovery cut-off in this case, but it set no deadline for amending pleadings. Therefore, the court need not conduct a Rule 16(b)(4) analysis. See Arrigo, 836 F.3d at 797 (collecting cases in which deadline had passed); Adams, 742 F.3d at 733-34 (affirming two-step analysis where plaintiff moved to amend six months after scheduling-order deadline to amend pleadings). Under Rule 15(a)(2), “[t]he court should freely give leave [to amend a pleading] when justice so requires” before trial. Rule 15(a)(2) affords “[D]istrict courts . . . broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.” Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)) (brackets in original); accord Bell v. Taylor, 827 F.3d 699, 705 (7th Cir. 2016) (quoting Bethany Pharmacal Co., v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001)).

         III. Analysis

         Arnaout asserts that the government has been investigating his marital status for over a decade. He maintains, therefore, that the government unduly delayed making the instant motion. He also asserts that the proposed amendment is futile.

         A. Undue ...

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