United States District Court, D. Colorado
Kathleen M. Tafoya United States Magistrate Judge.
case comes before the court on the “Motions to Dismiss
for (1) Lack of Subject Matter Jurisdiction Pursuant to
Fed.R.Civ.P. 12(b)(1); or Alternatively to Dismiss (2)
Pursuant to the Doctrines of Res Judicata and Waiver.”
(Doc. No. 14 [Mot.], filed August 25, 2017.) Plaintiff filed
his Response on September 15, 2017 (Doc. No. 23 [Resp.]), and
Defendant filed her Reply on October 6, 2017 (Doc. No. 27
OF THE CASE
filed this case on June 26, 2017, asserting this Court has
jurisdiction pursuant to 28 U.S.C. § 1331 and federal
immigration law, specifically 8 U.S.C. § 1183a(e)(I)
(See Doc. No. 1, Verified Complaint [Compl.], ¶
3.) Plaintiff asserts a claim for Breach of Contract of a
Form I-864, Affidavit of Support (“Form I-864”),
“which was mandated by Congress to ensure that certain
classes of immigrants to the United States would be
guaranteed a level of support necessary to meet basic human
needs.” (See Doc. No. 1, Verified Complaint
[Compl.], ¶¶ 1, 14.) In mandating the form,
Congress required visa sponsors, rather than the American
people, to serve as a safety net to new immigrants.”
(Id., ¶ 1.)
is a citizen of Bulgaria who married Defendant on July 31,
2012. (Id., ¶¶ 27- 28.) Defendant executed
and filed with the U.S. Citizenship and Immigration Services
(“USCIS”) a Form I-130, Petition for Alien
Relative, listing Plaintiff as the intending immigrant
beneficiary. (Id., ¶ 29; Ex. 3.) Concurrently
with Ms. Schmidt's filing of the Form I-130 petition, and
based on that petition, Plaintiff filed a Form I-485,
Application to Adjust Status with USCIS. (Id.,
¶ 31; Ex. 3.) Defendant also filed the Form I-864 with
USCIS in support of Plaintiff's Form I-485 Application.
(Id., ¶¶ 33-34; Ex. 1.) Defendant's
support duty under the Form I-864 was subject to the
condition precedent that Plaintiff gain status as a Lawful
Permanent Resident (“LPR”). (Id., ¶
35.) Plaintiff's Form I-485 Application was approved by
USCIS on December 5, 2012, and Plaintiff was granted status
as an LPR of the United States on December 5, 2012.
(Id., ¶¶ 36-37; Ex. 2 & Ex. 4.)
parties divorced on September 23, 2016. (Id., ¶
39; Ex. 5.) The decree of dissolution incorporated by
reference a Memorandum of Understanding (“MOU”)
executed by the parties on August 30, 2016. (Id.,
¶ 40; Ex. 5 at 2; Ex. 6.) Plaintiff claims that he
waived any claims for maintenance, but did not waive any
rights under the Form I-864. (Id., ¶ 41; Ex.
6.) Plaintiff states that none of the Terminating Events set
forth in the Form I-864 have occurred, yet Defendant has
failed to provide Plaintiff with financial support as
required. (Id., ¶¶ 42, 49.)
Lack of Subject Matter Jurisdiction
Rule of Civil Procedure Rule 12(b)(1) empowers a court to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceedings in which it becomes apparent that
jurisdiction is lacking.” See Basso, 495 F.2d
at 909. The dismissal is without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
argues this Court does not have subject matter jurisdiction
over Plaintiff's breach of contract claim because it is
premised on a Form I-864 Affidavit of Support. (See
Mot. at 5-8.)
plaintiff properly invokes § 1331 jurisdiction when he
pleads a colorable claim “arising under” the
United States Constitution or laws. Bell v. Hood,
327 U.S. 678-81, 685 (1946). However, a claim “arises
under” the laws of the United States when
“federal law creates the right of action and provides
the rules of decision.” Mims v. Arrow Fin. Servs.,
LLC, 565 U.S. 368, 377 (2012).
Tenth Circuit has not specifically addressed the issue of
whether federal district courts have subject matter
jurisdiction over actions premised upon Form I-864 Affidavits
of support. Defendant relies, in part, on Winters
v. Winters, 6:12-CV-536-ORL-37, 2012 WL 1946074 (M.D.
Fla. May 30, 2012), which determined the court did not have
subject matter jurisdiction over an action for support under
a Form ...