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Ivanoff v. Schmidt

United States District Court, D. Colorado

March 23, 2018

GALIN IVANOFF, an individual, Plaintiff,
JENNIE ALISON SCHMIDT, an individual, Defendant.


          Kathleen M. Tafoya United States Magistrate Judge.

         This 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 [Reply]).


         Plaintiff 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.)

         Plaintiff 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.)

         The 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.)


         A Lack of Subject Matter Jurisdiction

         Federal 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).

         A Rule 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.


         Defendant 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.)

         A 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).

         The 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.[1] 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 ...

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