Encarnacao v. Beryozkina

Filing 24

ORDER TO SHOW CAUSE why case should not be dismissed with prejudice. Show Cause Response due by 10/5/2017.Signed by Judge Maria-Elena James on 9/8/2017. (mejlc3, COURT STAFF) (Filed on 9/8/2017) (Additional attachment(s) added on 9/8/2017: # 1 Certificate/Proof of Service) (rmm2S, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDER DA ENCARNACAO, Case No. 17-cv-02504-MEJ Plaintiff, 8 v. 9 10 ANNA BERYOZKINA, ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED WITH PREJUDICE Defendant. United States District Court Northern District of California 11 12 The Court has presided over five actions filed by Plaintiff Eder Da Encarnacao against 13 14 Defendant Anna Beryozkina arising out of Beryozkina’s failure to support Plaintiff and his minor 15 son after Plaintiff and Defendant divorced. See generally Da Encarnacao v. Beryozkina (“Da 16 Encarnacao I”), Case No. 16-cv-2522 (N.D. Cal.), Order on Motion to Dismiss and Motion to 17 Declare Plaintiff a Vexatious Litigant, Dkt. No. 92. The Court and the parties are familiar with the 18 procedural history and factual background of this matter. As a result of the procedural 19 background, the Court ordered Defendant not to answer the operative Second Amended Complaint 20 (SAC, Dkt. No. 14). Plaintiff is representing himself in this action; Defendant at this point also is 21 pro se. 22 In this action, Plaintiff alleges Defendant undertook legal obligations to support him and 23 his minor son when she sponsored them for immigration into the United States and signed an I- 24 134 Form and an I-864 Form. See SAC. 25 First, it appears that Plaintiff settled and released claims of support based on the I-864 26 Form, at least through 2016, in Da Encarnacao I. Plaintiff’s complaint in Da Encarnacao I 27 alleged Defendant failed in her obligation to support “Plaintiff and his minor child in the United 28 States. . . . Defendant gave Plaintiff and his son no support . . . the income for Plaintiff and his son 1 is not at the required level, and has not been compensated for the many months last year.” Da 2 Encarnacao I, Dkt. No. 8 (First Am. Compl.) ¶¶ 7-9. Plaintiff settled his support claim and 3 dismissed it with prejudice. See Da Encarnacao I, Dkt. No. 63 (dismissal); Opp’n to Mot. to 4 Relate, Ex. A (Plaintiff agreed to settle breach of contract claim through 2016). 5 Second, an I-134 Form does not carry the same contractual obligations created by an I-864 6 Form. See Kalincheva v. Neubarth, 2012 WL 5328616, at *4 (E.D. Cal. Oct. 26, 2012) (“‘The 7 contractual obligations imposed by the [Illegal Immigration Reform and Immigrant Responsibility 8 Act of 1996] on an affidavit of support made on an I-864 Form do not attach to affidavits of 9 support made on an old I-134 Form.’” (quoting Cobb v. Cobb, 2012 WL 2620524, at *3 (E.D. Cal. July 5, 2012))); Cheshire v. Cheshire, 2006 WL 1208010, at *2 (M.D. Fla. May 4, 2006) 11 United States District Court Northern District of California 10 (“[F]ederal courts have consistently found that Form I-134 is not a legally enforceable contract 12 against a sponsor by a sponsored immigrant”) (citing cases)); Tornheim v. Kohn, 2002 WL 13 482534, at *4 (E.D.N.Y. Mar. 26, 2002) (contractual obligations imposed through I-864 Form “do 14 not attach to affidavits of support made on an old I-134 Form. As such, this Court finds that an 15 affidavit of support on an I-134 Form is not a legally binding contract.”). 16 Because it appears that Plaintiff released any claim based on the I-864 Form (at least to the 17 extent the claim had accrued by December 2016) and that the I-134 Form is not an enforceable 18 contract, the Court hereby ORDERS Plaintiff to show cause why this case should not be dismissed 19 with prejudice. Plaintiff shall file a declaration by October 5, 2017. Notice is hereby provided 20 that failure to file a written response will be deemed an admission that Plaintiff concedes the case 21 lacks merit and does not intend to prosecute it further; the case will be dismissed with prejudice. 22 Thus, it is imperative that the Court receive a written response by the deadline above. 23 24 25 26 IT IS SO ORDERED. Dated: September 8, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 27 28 2

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