Kinnally v. U.S. Customs and Border Protection

• Court: District Court, S.D. California
• Decided: July 16, 2025
• Docket: 3:24-cv-01454
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Peter KINNALLY, Case No.: 24-cv-1454-AGS-JLB 4 Plaintiff, ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND AND 5 v. DENYING SUMMARY-JUDGMENT 6 U.S. CUSTOMS AND BORDER MOTION (ECF 12) PROTECTION, 7 Defendant. 8

9 The key issue here is whether this Freedom of Information Act case is moot. 10 Last year, plaintiff “Peter Kinnally sent a FOIA request” to defendant U.S. Customs 11 and Border Protection, “seeking all records regarding himself.” (ECF 1, at 1.) By 12 August 15, 2024, when Kinnally filed suit, CBP still “ha[d] not produced any records or 13 provided any response indicating whether it ha[d] begun its search” for responsive 14 documents. (Id. at 2.) But the next month—on September 25, 2024—CBP “released 15 responsive travel records” to Kinnally. (ECF 12, at 3.) Also, following this “September 16 production,” Kinnally “provided additional data points regarding himself, such as his 17 license plate and phone numbers, that could be utilized in additional searches.” (Id.) With 18 that information, CBP performed another “thorough search” and “produced all responsive 19 records.” (Id.) 20 CBP now moves for summary judgment, arguing all claims are “moot.” (ECF 12, 21 at 6–8.) The Court construes that as a motion to dismiss for lack of jurisdiction and agrees 22 that these claims are moot. See Bishop Paiute Tribe v. Inyo County, 863 F.3d 1144, 1155 23 (9th Cir. 2017) (holding that a “federal court lacks [subject matter] jurisdiction to hear a 24 case that is moot”); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time 25 that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 26 In the FOIA context, when a complaint seeks “injunctive relief directing the 27 [agency] to provide the documents . . . requested,” the complaint is “mooted when the 28 [agency] voluntarily” acquiesces. Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1 |} 1986). “A FOIA claim is not moot,” however, “if the agency produces what it maintains is 2 || all the responsive documents, but the plaintiff challenges whether the agency’s search for 3 ||records was adequate.” Yonemoto v. Department of Veterans Affs., 686 F.3d 681, 689 4 ||(9th Cir. 2012) (cleaned up), overruled on other grounds by Animal Legal Def. Fund v. 5 || U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016) (en banc) (per curiam). 6 Although the complaint prospectively requested “prompt and adequate searches,” 7 || (ECF 1, at 5) it did not dispute the sufficiency of CBP’s now-completed record searches. 8 || Nor could it. After all, when Kinnally first sued, the records had not yet been produced. 9 || (See id.) So, CBP’s production mooted the complaint, warranting dismissal. 10 The only question, then, is whether Kinnally should be granted leave to amend. CBP 11 || says “amendment would be futile,” as its search “was more than adequate.” (ECF 12, at 8.) 12 || And Kinnally waived any contrary argument by failing to respond to CBP’s motion here. 13 || See Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 14 (C.D. Cal. 2011) (“[I]n most circumstances, failure to respond in an opposition brief to an 15 |}argument put forward in an opening brief constitutes waiver or abandonment in regard to 16 || the uncontested issue.” (cleaned up)); see also Obeng-Amponsah v. U.S. Bank Nat’l Ass’n, 17 ||677 F. App’x 423, 423 (9th Cir. 2017) (affirming “‘the district court’s dismissal for failure 18 || to respond” to “defendant’s motion to dismiss”). 19 Thus, the complaint is dismissed without prejudice and without leave to amend. 20 || CBP’s summary-judgment motion is denied as moot, and the hearing on that motion is 21 || vacated. 22 Dated: July 16, 2025 i / 23 4 Hon. rew G. Schopler United States District Judge 25 26 27 28