United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
IVAN D. DAVIS, Magistrate Judge.
This matter is before the Court on the United States' Motion for Default Judgment against Defendant Maim Abdul Rahini. ("Defendant"), pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. (Dkt. No. 12.) After Defendant failed to respond or appear at any proceedings, the undersigned Magistrate Judge took this matter under advisement to issue this Report and Recommendation. Upon consideration of the Complaint, the Motion for Default Judgment, the supporting affidavits and documentation thereto, and relevant portions of the underlying record, the undersigned Magistrate Judge recommends that Plaintiff's Motion be GRANTED.
On June 13, 2011 Plaintiff filled a Complaint against Defendant seeking to revoke naturalization pursuant to 8 U.S.C. § 1451(a), alleging that Defendant procured naturalization by willful concealment or misrepresentation of material fact. (1)kt. No. 1.) Plaintiff has moved ibr default judgment against Defendant, and requests that this Court revoke and set aside the order granting Defendant's citizenship as well as cancel Defendant's Certificate of Naturalization. (Moi. Def. J. at 1.)
A. Jurisdiction and Venue
This Court has jurisdiction pursuant to 28 U.S.C. § 1345 because the United States is the plaintiff. Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331 because the action arises under 8 U.S.C. § 1451(a)-a federal statute.
Personal jurisdiction is proper because Virginia's long-arm statute authorizes exercise of jurisdiction over a defendant who caused injury by acts or omissions in Virginia, and because Defendant has established minimum contacts with the forum. See Va. Code § 8.01-328.1(A)(3); See Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Plaintiff alleges that Defendant willfully concealed and misrepresented material facts to obtain citizenship in the Eastern District of Virginia, where she was also naturalized. (Dkt. No. I Ex. 1 ¶ 4, 7.)
Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims occurred in the Eastern District of Virginia, according to the facts alleged in the Complaint. (Dkt. No. 1 Ex. 1 ¶ 4, 7.) Venue is also proper under 8 U.S.C. 1451(a), which provides that if the naturalized citizen does not reside in the United States at the time of bringing the action, proceedings may be instituted in the district court where the citizen last resided. Defendant left the United States in 2008, and her last known United States residences were in Centreville, Virginia, and Vienna, Virginia, both in the Eastern District of Virginia. (Comps. ¶ 4; Dkt. No. 1 Ex. 1 ¶ 8; Dkt. No. 5 Ex. 1 in ¶¶ 6, 7.) Accordingly, subject matter jurisdiction, personal jurisdiction, and venue are satisfied in this action.
B. Service of Process
8 U.S.C. § 1451(b) normally requires the Plaintiff to provide the Defendant with 60 days personal notice, but it does authorize service by publication under the laws of the state where the action is filed when a defendant is outside of the United States. Virginia law provides for service by publication to a nonresident individual. See Va. Code § 8.01-316(A)(1)(a)(iii). Except in condemnation cases, orders of publication in Virginia must state the style and object of the suit and must require the defendant to appear to protect their interests at least 50 days after entry of the order. Va. Code § 8.01-317. The order must be posted at the front door of the courthouse where the action would be tried, and a copy must be mailed to the defendant. Id. The court may dispense with newspaper publication where deemed proper. Id.
The initial summons issued listed an address for Defendant in Amman, Jordan, but Plaintiff did not complete service. (Dkt. No. 2) On December 3, 2013, this Court ordered Plaintiff to show within 20 days why the action should not be dismissed because service had not been effected 120 days after the Complaint was filed. (Dkt. No. 3.) On December 17, 2013, Plaintiff moved to notify Defendant by publication according to Virginia law. The motion was accompanied by an affidavit stating that Defendant had been outside of the United States and living in Syria since October 2008. (Dkt. No. 5; Dkt. No. 5 Ex. 1 ¶ 7.) On December 20, 2013, this Court granted Plaintiff's motion and issued an Order of Publication in the manner provided for by Virginia Code § 8.01-317. (Dkt. No. 8.) On January 7, 2014, Plaintiff filed a Notice and supporting affidavit that it had complied with the Order of Publication. Plaintiff noted in its notice that Defendant's Amman, Jordan address had insufficient detail to complete delivery. (Dkt. No. 10 at 2; Dkt. No. 10 Ex. 1 at 3.) Notwithstanding the incomplete address, Defendant acknowledged receipt of the order to appear when she sent a letter to this Court, addressed to the undersigned and dated February 17, 2014. (Dkt. No. 12 Ex. 3 at 40.) Plaintiff and Homeland Security Investigations received copies on March 4 and 6, 2014 respectively. (Dkt. No. 12 at 2.) Defendant's acknowledgment of the order indicates that service of process was completed.
C. Grounds for Entry of Default
On June 13, 2013, Plaintiff filed a Complaint against Defendant alleging willful concealment or misrepresentation of material fact to procure naturalization, and requesting revocation and cancellation of Defendant's naturalization. (Dkt. No. 1.) Defendant was served by publication on January 2, 2014, and was ordered to appear in court on or before March 7, 2014, to protect her interests. Mkt. No. 8, 10.) Defendant acknowledged receipt of the order in a letter to this Court dated February 17, 2014. (Dkt. No. 12 Ex. 3 at 40.)
Although Defendant wrote to this Court, her letter does not constitute an answer or defense to the Complaint under Rule 55(a) or an appearance under Rule 55(b)(2) of the Federal Rules of Civil Procedure. Default judgment is appropriate where the defendant fails to file an answer or responsive pleading to the Complaint or a response to a motion for default judgment. E.g. Whorton v. Trawler Kelsey Nicole, Inc., No. 2:09cv411, 2009 WL 4927155, at *3 (E.D. Va. Dec. 19, 2009). In order for the court to enter default judgment, a defendant who has appeared in court must be notified seven days before a default judgment hearing. Fed.R.Civ.P. 55(b)(2). Circuits are split on whether appearance in court may also be informal, such as correspondence, but courts agree that the defaulting party must show a clear intention to defend the action. See New York v. Green, 420 F.3d 99, 105-06 (2d Cir. 1998). The Fourth Circuit has not ruled on this issue, but the Eastern District of Virginia has followed the formal standard adopted by the Seventh Circuit. See Town & Country Kids, Inc. v. Protected Venture Investment Trust #1, Inc., 178 F.R.D. 453 (E.D. Va. 1998) (citing Zuelzke Tool and Eng'g Co. v. Anderson Die Castings, Inc., 925 F.2d 226, 230 (7th Cir. 1991)) (holding defendant's letter to ...