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Keywords

plaintiffdefendantattorneyhearingpleamotionnaturalizationmotion to dismiss
plaintiffdefendantattorneyhearingpleamotionnaturalizationmotion to dismiss

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Shalash v. Mukasey

Facts

Fares Shalash, a legal permanent resident since 1990, applied for naturalization in 2003 and was interviewed in 2004. After not receiving a decision by January 2007, he filed a petition for a hearing, naming several government officials as defendants. Although the defendants claimed they were not properly served, they participated in the case without contesting service until after the petition was mooted by the adjudication of Shalash's application in February 2008.

Fares Shalash, a legal permanent resident since 1990, applied for naturalization in 2003 and was interviewed in 2004. After not receiving a decision by January 2007, he filed a petition for a hearing, naming several government officials as defendants. Although the defendants claimed they were not properly served, they participated in the case without contesting service until after the petition was mooted by the adjudication of Shalash's application in February 2008.

Issue

Whether the defendants' motion to dismiss for insufficient service of process should be granted and whether the plaintiff is entitled to attorneys' fees and costs under the EAJA.

Whether the defendants' motion to dismiss for insufficient service of process should be granted and whether the plaintiff is entitled to attorneys' fees and costs under the EAJA.

Rule

A party may waive a defense of insufficiency of process by failing to assert it seasonably in a motion or their first responsive pleading. To prevail on a motion for fees under the EAJA, a party must show that they were a prevailing party, the Government's position was not substantially justified, and they filed a timely and complete application for fees.

A party may waive a defense of insufficiency of process by failing to assert it seasonably in a motion or their first responsive pleading. To prevail on a motion for fees under the EAJA, a party must show that: (1) he was a prevailing party; (2) the Government's position was not substantially justified; (3) there existed no special circumstances that would make an award unjust; and (4) he filed a timely and complete application for fees.

Analysis

The court found that the defendants waived their right to contest service by participating in the case without raising the issue in a timely manner. The court also determined that Shalash was a prevailing party under the EAJA because he achieved a remand order from the court, which is considered a significant victory. However, the court denied his request for costs due to insufficient evidence.

The court found that the defendants waived their right to contest service by participating in the case without raising the issue in a timely manner. The court also determined that Shalash was a prevailing party under the EAJA because he achieved a remand order from the court, which is considered a significant victory. However, the court denied his request for costs due to insufficient evidence.

Conclusion

The court denied the defendants' motion to dismiss and granted the plaintiff's application for attorneys' fees, ordering the amount to be recalculated at the statutory rate, but denied the application for costs.

The court denied the defendants' motion to dismiss and granted the plaintiff's application for attorneys' fees, ordering the amount to be recalculated at the statutory rate, but denied the application for costs.

Who won?

The plaintiff, Fares Shalash, prevailed because the court ordered CIS to adjudicate his naturalization application, which constituted a significant victory.

The plaintiff, Fares Shalash, prevailed because the court ordered CIS to adjudicate his naturalization application, which constituted a significant victory.

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