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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EDER DA ENCARNACAO,

Case No. 17-cv-02504-MEJ

Plaintiff,
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v.
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ANNA BERYOZKINA,

ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED WITH
PREJUDICE

Defendant.

United States District Court
Northern District of California

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The Court has presided over five actions filed by Plaintiff Eder Da Encarnacao against

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Defendant Anna Beryozkina arising out of Beryozkina’s failure to support Plaintiff and his minor

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son after Plaintiff and Defendant divorced. See generally Da Encarnacao v. Beryozkina (“Da

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Encarnacao I”), Case No. 16-cv-2522 (N.D. Cal.), Order on Motion to Dismiss and Motion to

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Declare Plaintiff a Vexatious Litigant, Dkt. No. 92. The Court and the parties are familiar with the

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procedural history and factual background of this matter. As a result of the procedural

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background, the Court ordered Defendant not to answer the operative Second Amended Complaint

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(SAC, Dkt. No. 14). Plaintiff is representing himself in this action; Defendant at this point also is

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pro se.

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In this action, Plaintiff alleges Defendant undertook legal obligations to support him and

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his minor son when she sponsored them for immigration into the United States and signed an I-

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134 Form and an I-864 Form. See SAC.

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First, it appears that Plaintiff settled and released claims of support based on the I-864

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Form, at least through 2016, in Da Encarnacao I. Plaintiff’s complaint in Da Encarnacao I

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alleged Defendant failed in her obligation to support “Plaintiff and his minor child in the United

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States. . . . Defendant gave Plaintiff and his son no support . . . the income for Plaintiff and his son

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is not at the required level, and has not been compensated for the many months last year.” Da

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Encarnacao I, Dkt. No. 8 (First Am. Compl.) ¶¶ 7-9. Plaintiff settled his support claim and

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dismissed it with prejudice. See Da Encarnacao I, Dkt. No. 63 (dismissal); Opp’n to Mot. to

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Relate, Ex. A (Plaintiff agreed to settle breach of contract claim through 2016).

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Second, an I-134 Form does not carry the same contractual obligations created by an I-864

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Form. See Kalincheva v. Neubarth, 2012 WL 5328616, at *4 (E.D. Cal. Oct. 26, 2012) (“‘The

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contractual obligations imposed by the [Illegal Immigration Reform and Immigrant Responsibility

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Act of 1996] on an affidavit of support made on an I-864 Form do not attach to affidavits of

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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)

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United States District Court
Northern District of California

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(“[F]ederal courts have consistently found that Form I-134 is not a legally enforceable contract

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against a sponsor by a sponsored immigrant”) (citing cases)); Tornheim v. Kohn, 2002 WL

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482534, at *4 (E.D.N.Y. Mar. 26, 2002) (contractual obligations imposed through I-864 Form “do

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not attach to affidavits of support made on an old I-134 Form. As such, this Court finds that an

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affidavit of support on an I-134 Form is not a legally binding contract.”).

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Because it appears that Plaintiff released any claim based on the I-864 Form (at least to the

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extent the claim had accrued by December 2016) and that the I-134 Form is not an enforceable

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contract, the Court hereby ORDERS Plaintiff to show cause why this case should not be dismissed

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with prejudice. Plaintiff shall file a declaration by October 5, 2017. Notice is hereby provided

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that failure to file a written response will be deemed an admission that Plaintiff concedes the case

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lacks merit and does not intend to prosecute it further; the case will be dismissed with prejudice.

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Thus, it is imperative that the Court receive a written response by the deadline above.

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IT IS SO ORDERED.
Dated: September 8, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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