United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
C. Seeger United States District Judge
United States seeks to revoke the Defendant's citizenship
based on false statements that he made during the
naturalization process. The United States filed for judgment
on the pleadings under Rule 12(c), based solely on the
government's own complaint and the accompanying exhibits.
But Rule 12(c) requires a pleading from both sides - it is,
after all, a motion for judgment on the “pleadings,
” plural. See Fed. R. Civ. P. 12(c). A
plaintiff cannot obtain judgment under Rule 12(c) based on
plaintiff's complaint alone. The government filed its
motion before the Defendant filed its answer, and for that
simple reason, the motion for judgment on the pleadings (the
pleading, actually) is denied.
Wail Talab Salem came to the United States from Jordan in
1986 on a student visa. See Cplt. ¶ 7. He got
more out of this country than an education - he found a
spouse, too. Before too long, he married a naturalized
citizen, id. at ¶ 8, and his status soon
changed to a permanent resident. Id. He later
applied for and became a United States citizen. Id.
at ¶ 27.
to the United States, Salem was running a
multi-million-dollar criminal operation. Beginning in April
1989 - four months before he became a permanent resident -
Salem perpetrated a scheme to steal money from a program that
feeds the poor. Id. at 1. He owned a chain of
neighborhood grocery stores, and he used those stores to
fraudulently redeem millions of dollars of food stamps.
Id. Over $12 million, to be exact. Id. He
fleeced the government for six years. Id. at ¶
9. Along the way, Salem committed mail fraud, food stamp
fraud, and identity document fraud, and he obstructed the
IRS, too. Id.
criminal activity eventually caught up with him. He was
arrested and later indicted on 24 counts. See Dckt.
No. 1-3. In December 1998, Defendant signed a plea agreement.
See Plea Agreement, Dckt. No. 1-4; Cplt. at ¶
12. He pleaded guilty to 12 counts of the indictment, and
admitted pages of facts that established his guilt.
See Cplt. at ¶ 12
Plea Agreement contained traditional language establishing
that Salem knowingly and voluntarily accepted his guilt. The
Plea Agreement made clear that Salem “read this
Agreement and carefully reviewed each provision with his
attorney, ” who “fully explained” the
charges. See Plea Agreement, Dckt. No. 1-4, at 2-3,
21. Salem agreed that he “fully understands the nature
and elements of the crimes with which he has been charged,
” and that he “will plead guilty because he is in
fact guilty of the charges contained in” the 12 counts.
Id. at 3. After pleading guilty, see Dckt.
No. 1-6, Salem received a sentence of 56 months imprisonment.
See Judgment in a Criminal Case, Dckt. No. 1-5, at
2; Cplt. at ¶ 14.
2019, the United States filed the current suit before this
Court, seeking an Order revoking Salem's citizenship. The
United States contends that Salem concealed the fact that he
was engaged in criminal activity when he applied for U.S.
citizenship. See Cplt. at 1-2. Until recently, Salem
was “incarcerated for crimes committed after
his naturalization and unrelated to the fraudulent scheme
described” in the complaint. See Dckt. No. 7,
at 5 n.4 (emphasis in original).
did not respond to the complaint in a timely manner.
Ordinarily, a plaintiff may seek a default judgment under
Rule 55 when the defendant ignores a lawsuit. But the Supreme
Court has expressed disapproval of default judgments in
naturalization proceedings, given the importance of
citizenship. See Klapprott v. United States, 335
U.S. 601, 612-13 (1949); Schneiderman v. United
States, 320 U.S. 119, 122 (1943) (finding that
citizenship is “such a right [that] once conferred
should not be taken away without the clearest sort of
justification and proof”); see also Costello v.
United States, 365 U.S. 265, 269 (1961) (“American
citizenship is a precious right.”). That approach puts
the government in a bit of a quandry: how can the government
press forward in a naturalization case when a defendant
refuses to participate?
light of Klapprott, the United States did not seek a
default judgment under Rule 55 in the case at hand. Instead,
the United States elected to file a motion for judgment on
the pleadings under Rule 12(c). See Dckt. No. 7. But
that motion fits uncomfortably with the text of the Federal
Rules. Rule 12(c) permits a motion for judgment on the
“pleadings, ” plural, and the use of the
plural was no accident. See Fed. R. Civ. P. 12(c). A
plaintiff cannot obtain judgment under Rule 12(c) based on
the plaintiff's own complaint, and nothing else.
motion for judgment on the pleadings is a way to dispense
with a claim after the defendant has filed an answer.
“After the pleadings are closed” - and not before
- “a party may move for judgment on the
pleadings.” See Fed. R. Civ. P. 12(c); 2 James
Wm. Moore, Moore's Federal Practice § 12.38 (3d ed.
2019) (“If the pleadings have not closed because the
defendant has failed to answer, the plaintiff's remedy is
not a judgment on the pleadings. The proper motion in that
situation is a motion for judgment of default under Rule
55.”); 5C Arthur R. Miller, Fed. Prac. & Proc. Civ.
§ 1367 (3d ed. 2019) (“[T]he plaintiff cannot move
under Rule 12(c) until after an answer has been
filed.”); Moss v. Martin, 473 F.3d 694, 698
(7th Cir. 2007) (“Under Rule 12(c), a party can move
for judgment on the pleadings after the filing of the
complaint and answer.”); Brunt v. Serv. Employees
Int'l Union, 284 F.3d 715, 718 (7th Cir. 2002)
(same); Northern Indiana Gun & Outdoor Shows, Inc. v.
City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998)
answer is a pleading, see Fed. R. Civ. P. 7(a)(2),
and Salem had not filed an answer when the United States
filed a motion for judgment on the pleadings. So the
pleadings had not “closed” when the government
filed its motion, see Fed. R. Civ. P. 12(c), which
means that a motion for judgment on the pleadings was not the
right step. A motion under Rule 12(c) requires
“competing pleadings, ” but here, the government
wants judgment without confronting an answer as a competitor.
See 5C Arthur R. Miller, Fed. Prac. & Proc. Civ.
§ 1367 (3d ed. 2019).
meantime, Defendant filed a motion for an extension of time
to file an answer, which this Court granted in part.
See Dckt. Nos. 20 & 22. Salem filed an answer on
November 22, 2019, and denied many of the complaint's
core allegations. Salem basically denied that he had engaged
in any criminal activity. See Dckt. No. 23. To put
it mildly, that position is more than a little difficult to
square with his Plea Agreement and ensuing guilty plea.
Court could treat the government's motion for judgment on
the pleadings as a motion for summary judgment. See
5C Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1371
(3d ed. 2019). Rule 12(d) contemplates something similar when
a party submits materials outside the pleadings on a motion
under Rule 12(c). See Fed. R. Civ. P. 12(d). And
unlike a motion for judgment on the pleadings, a motion for
summary judgment can be filed at any time. See 5C
Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1369 (3d
ed. 2019) (“In terms of timing, the summary judgment
motion can be made by the plaintiff or the defendant at any
time, although if the motion seems premature the court may
extend the time to respond. By way of contrast, neither party
may move for a judgment on the pleadings until the close of
the pleadings.”); Fed.R.Civ.P. 56(b) (“[A] party
may file a motion for summary judgment at any time until 30
days after the close of all discovery.”). “[T]he
summary judgment procedure is available when the defendant
fails to file an answer, whereas technically no relief would
be available under Rule 12(c) because the pleadings have not
been closed.” 5C Arthur R. Miller, Fed. Prac. &
Proc. Civ. § 1369 (3d ed. 2019). A plaintiff doesn't
have to wait for the defendant's answer before filing for
summary judgment, so the government could have filed a
summary judgment motion here.
there is one hitch. The Local Rules impose requirements for
summary judgment motions, such as the filing of a statement
of material facts. See Local Rule 56.1(a). And ...