O 1 JS-6 2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 11 MEIRAV TOREN, Case № 2:19-cv-00569-ODW (FFMx)

12 Plaintiff, ORDER GRANTING 13 DEFENDANTS’ MOTION TO v. DISMISS [12] 14

15 KEVIN McALEENAN, et al., 16 Defendants. 17 18 I. INTRODUCTION 19 Defendants Kevin McAleenan, Acting Secretary, Department of Homeland 20 Security, William Barr, Attorney General, and Kenneth T. Cuccinelli, Acting Director, 21 United States Citizenship and Immigration Services (“Defendants”)1 move to dismiss 22 Plaintiff Meirav Toren’s (“Toren”) Complaint for Mandamus and Declaratory 23 Judgment (“Motion”). (Mot. to Dismiss (“Mot.”), ECF No. 12.) Toren did not 24 oppose the Motion. (See Notice of Non-Receipt of Opp’n (“Notice”), ECF No. 13.) 25 For the reasons that follow, the Court GRANTS Defendants’ Motion.2 26

1 McAleenan, Barr, and Cuccinelli are substituted for their predecessors, Kirstjen Nielsen, Matthew 27 Whitaker, and L. Francis Cissna, respectively. Fed. R. Civ. P. 25(d). (See Mot. 1.) 28 2 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 Toren initiated this mandamus action “to compel the Defendants . . . to 3 determine eligibility for Toren’s Adjustment of Status Application Only.” (Compl. 4 ¶ 1, ECF No. 1 (emphasis omitted).) 5 Toren alleges that she petitioned successfully for an R-1 visa on March 29, 6 2006. (Compl. ¶ 9.) An R-1 non-immigrant religious worker visa is limited to five 7 years. (Compl. ¶ 9; Mot. 2–3.) The United States Citizenship and Immigration 8 Services (“USCIS”) erroneously granted Toren an extension of her R-1 visa to May 6, 9 2013, two years beyond the five-year limit.3 (See Compl. ¶¶ 9–10; Mot. 3.) When she 10 applied for a further extension, and her attorney failed to respond to USCIS’s request 11 for more information, USCIS denied the requested extension on January 16, 2014. 12 (See Compl. ¶ 10; Mot. 3.) Her appeal was denied. (Compl. ¶ 10.) Accordingly, her 13 R-1 visa expired in May 2013. (See Compl. ¶ 10; Mot. 3–4.) 14 In January 2014, Toren applied for an I-360 immigrant religious worker visa, 15 which USCIS approved in July 2014. (See Compl. ¶ 10; Mot. 2–3.) She then applied 16 to adjust her status to a lawful permanent resident with an I-485 form. (See Compl. 17 ¶ 10; Mot. 3–4.) However, USCIS denied her I-485 application because she was out 18 of legal status for more than 180 days after her R-1 visa expired. (Compl. ¶ 10; see 19 Mot. 4 (alterations in original) (internal quotation marks omitted) (“Specifically, 20 [plaintiff’s] R1 religious worker status expired on May 13, 2013, and plaintiff did not 21 file [her] Form I-485 until July 15, 2014, meaning that plaintiff was out of status for 22 427 days.”).) Toren’s subsequent appeals were also denied. (Compl. ¶ 11; see 23 Mot. 4.) Thereafter, Toren initiated this mandamus action on January 24, 2019. 24 Defendants move to dismiss Toren’s Complaint on the basis that, in August 25 2019, USCIS issued a notice to appear, commencing removal proceedings against 26

3 Toren alleged this date as May 6, 2013, but Defendants’ Motion indicates May 13, 2013. (See 27 Compl. ¶ 10; Mot. 3.) On a motion to dismiss, the Court construes all “factual allegations set forth 28 in the complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles,

(9th Cir. 2001). 1 Toren and depriving the Court of subject matter jurisdiction. (See Mot. 4.) 2 Defendants noticed the hearing on the Motion for September 23, 2019, at 1:30 p.m. 3 Thus, pursuant to Local Rule 7-9, Toren’s opposition was due no later than September 4 2, 2019. See C.D. Cal. L.R. 7-9 (requiring oppositions to be filed no later than 5 twenty-one days before the motion hearing). As the deadline fell on a national 6 holiday, Toren’s opposition was due August 30, 2019, pursuant to the Court’s 7 standing orders. See Standing Order § VII.A.1, https://www.cacd.uscourts.gov/ 8 honorable-otis-d-wright-ii. However, to date, Toren has filed no opposition. 9 III. DISCUSSION 10 Central District of California Local Rule 7-12 provides that the Court “may 11 decline to consider any memorandum or other document not filed within the deadline 12 set by order or local rule.” C.D. Cal. L.R. 7-12 (“The failure to file [a responsive 13 document], or the failure to file it within the deadline, may be deemed consent to the 14 granting or denial of the motion. . . .”); Ghazali v. Moran,

(9th Cir. 15 1995) (affirming dismissal on the basis of unopposed motion pursuant to local rule). 16 Defendants move to dismiss Toren’s Complaint without prejudice. (See Mot. 1, 17 7.) Prior to dismissing an action pursuant to a local rule, courts must weigh: “(1) the 18 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage 19 its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 20 disposition of cases o[n] their merits; and (5) the availability of less drastic sanctions.” 21 Ghazali,

(quoting Henderson v. Duncan,

(9th Cir. 22 1986)). “Explicit findings with respect to these factors are not required.” Ismail v. 23 Cty. of Orange, SACV 10-00901 VBF (AJW),

, at *1 (C.D. Cal. 24 Nov. 7, 2012) (citing Henderson,

; accord, Malone v. U.S. Postal 25 Serv.,

(9th Cir. 1987), cert. denied,

(1988)). In 26 Ghazali, the Ninth Circuit found these factors satisfied where the plaintiff received 27 notice of the motion and had “ample opportunity to respond,” yet failed to do so. See 28 Ghazali,

. 1 Here, Toren received notice of the motion and had ample opportunity to respond, yet failed to do so. Toren is represented by counsel in this matter and her 3 || attorney is a registered CM/ECF user who receives notice of electronic filings in this 4] action. Further, Defendants assert that counsel for both parties met and conferred 5 || pursuant to Local Rule 7-3 in advance of Defendants filing the Motion. Thus, Toren 6|| and Toren’s counsel had notice of the instant Motion but failed to respond. 7 || Defendants filed the Motion on August 14, 2019; Toren has had seven weeks to 8 | respond. However, Toren has not sought an extension of time to respond or any other 9 || relief, nor has she offered an excuse for failing to oppose. She also has not responded 10 || to Defendants’ Notice of Non-Receipt of Opposition, in which Defendants request that 11 || the Court grant the Motion as unopposed pursuant to Federal Rule of Civil 12 | Procedure 41(b) and Local Rule 7-12. (Notice 1.) As such, the Court construes 13 | Toren’s failure to respond to Defendants’ Motion as consent to the Court granting it. 14 Accordingly, pursuant to Local Rule 7-12 and Ghazali, the Court GRANTS 15 || Defendants’ Motion. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss. 18 || (ECF No. 12.) Consequently, the Court DISMISSES Toren’s Complaint WITHOUT 19 | PREJUDICE. 20 21 IT IS SO ORDERED. 22 23 October 1, 2019 es 24 ig

OTIS D. WRIGHT, II 7 UNITED STATES DISTRICT JUDGE

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