Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

[paz1960]

calm down and wait

I filed my case in Northern District of Indiana on 8/21 and the response is due on 10/24 and I still have no AUSA assigned!!! I called the AUSA office today and they said that nobody is assigned yet and they will call me when somebody gets assigned!!!! There are only 6 days until the response, WHAT SHOULD I DO??? HIRE A LAWYER, OR WAIT???? THE WAITING IS NOT HELPING MY NERVES If they don't respond by 10/24 should I give them more time or file motion for default judgement?

stoyan79, I assume that you were prepared to fight till the end when you filed this complaint Pro Se. So don't worry, wait till your 60 days are up. Almost sure, that AUSA will be assigned till that and will file either a request for extension or a motion to dismiss lack of jurisdiction. The governement will not let you off the hook so easily to not respond in 60 days. If this happens by a miracle, you should file a motion for default judgement. But check when your 60 days started. There were discussions on this forum about this, some members claimed that the clock started ticking when the DA office was served, some stated that their local rules specified that the clock starts only when ALL defendants were served. Check your local rules.

Anyone who thinks that will not be able to respond to a Motion to dismiss from AUSA and doesn't want to defend his/her case in front of the judge, should not follow this avenue (i.e., filing ProSe). Of course, the hope is that the case is settled BEFORE you have to file an answer to a motion to dismiss or to actually go in front of a judge. But don't bet on it, study, study, study. Be prepared and you will ultimately win. Look at the 'forefathers and foremothers' of this forum. They did it, we should be able to do it. I admit, in the view of the El Kassami case posted today, seems more difficult, but 'neven, never, never give up' (Churchill).

 

[786riz]

I like this attitude

Hi paz1960,
I really like this attitude, pleased to see this courage. So the lesson learned is, do not just file and assumed that AUSA would call you and give you good news. Before filling prepare your case, gathered all kind of info related to your case and ready for all the hurdles. Assuming everything will be cozy is not a good assumption, especially when you are fighting with government.

stoyan79, I assume that you were prepared to fight till the end when you filed this complaint Pro Se. So don't worry, wait till your 60 days are up. Almost sure, that AUSA will be assigned till that and will file either a request for extension or a motion to dismiss lack of jurisdiction. The governement will not let you off the hook so easily to not respond in 60 days. If this happens by a miracle, you should file a motion for default judgement. But check when your 60 days started. There were discussions on this forum about this, some members claimed that the clock started ticking when the DA office was served, some stated that their local rules specified that the clock starts only when ALL defendants were served. Check your local rules.

Anyone who thinks that will not be able to respond to a Motion to dismiss from AUSA and doesn't want to defend his/her case in front of the judge, should not follow this avenue (i.e., filing ProSe). Of course, the hope is that the case is settled BEFORE you have to file an answer to a motion to dismiss or to actually go in front of a judge. But don't bet on it, study, study, study. Be prepared and you will ultimately win. Look at the 'forefathers and foremothers' of this forum. They did it, we should be able to do it. I admit, in the view of the El Kassami case posted today, seems more difficult, but 'neven, never, never give up' (Churchill).

 

[peter2006]

certified mail

Please help!! When you submitted your summons with certified mail delivery notice to the court, Did you attach the greencard which showed the signature and the deliver date with the summon? or just print out the USPS website showed your mail was already delivered? I have not got the certified mail returned card for 3 weeks. How long did it take you to get the returned cards? Today I submitted the summons with the website print-out to the court and the clerk told me this is not good service. I have to wait until I get the returned card. but I saw some cases the summons were submitted with the website printout. So what should I do now?

 

[utsapeng]

Received Motion to Dismiss, Help Needed!!!

Just received motion to dismiss from Attorney office. They listed three reasons:
1. The complaint is should be dismissed because plaintiff cannot establish the existence of a non-discretionary duty to adjudicate his application within a certain time period
2. the complaint should be dismissed because it is brought in the improper venue
3. As a pro-se plaintiff, plaintiff cannot represent his wife.

We are asked to go to court next month. Should we hire a lawyer? Your suggestion is highly appreciated!

 

[IreneB]

great, congrats!

Thanks rob waiter! What about you? You filed about a week befor me, didn't you?

 

[rob waiter]

yeah, Irene. I am still hanging around.

BTW, did you call the AUSA before he contacted
you/your mom?

congrats again for this good news, which came
from the blue!

Thanks rob waiter! What about you? You filed about a week befor me, didn't you?

 

[IreneB]

Please help!! When you submitted your summons with certified mail delivery notice to the court, Did you attach the greencard which showed the signature and the deliver date with the summon? or just print out the USPS website showed your mail was already delivered? I have not got the certified mail returned card for 3 weeks. How long did it take you to get the returned cards? Today I submitted the summons with the website print-out to the court and the clerk told me this is not good service. I have to wait until I get the returned card. but I saw some cases the summons were submitted with the website printout. So what should I do now?

I had 2 cards back, so I submitted 2 cards and the rest printouts from USPS. I didn't go to the court though, I sent the summons by mail.

 

[paz1960]

Please help!! When you submitted your summons with certified mail delivery notice to the court, Did you attach the greencard which showed the signature and the deliver date with the summon? or just print out the USPS website showed your mail was already delivered? I have not got the certified mail returned card for 3 weeks. How long did it take you to get the returned cards? Today I submitted the summons with the website print-out to the court and the clerk told me this is not good service. I have to wait until I get the returned card. but I saw some cases the summons were submitted with the website printout. So what should I do now?

Unfortunately, these things are regulated by the local court rules. In most of the cases reported on this forum, a printout from the USPS website which shows the delivery time TOGETHER with the copy of your green receipt you received when mailed the summons+complaint, was enough. You can try to go to your local post office with the printouts and receipts and ask them to print out from their system the confirmations. These should contain besides the delivery date also the signature of the person who received your mail. Maybe these would be enough proof of delivery.

My local rule is the following:
5.2 Proof of service - Proof of service of all pleadings and other papers required or permitted to be served shall be filed promptly after service and may be made by written acknowledgment of service, by affidavit of the person making service or by written certification of counsel. Proof of service shall state the date and manner of service. Proof of service is unnecessary for documents served electronically on a registered attorney.

I assume that you are waiting for the green cards (receipt confirmations) from Washington and you have the proof of delivery from your local District Attorney's office. Try to file this, in many districts the clock starts from the day you served the DA office. But, check the local rules. These are procedural informations so the court's clerk should be able to give you the answer.

Here is what the Federal Rule of Civil Procedures says about methods of serving:

(i) Serving the United States, Its Agencies, Corporations, Officers, or Employees.
(1) Service upon the United States shall be effected

(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and

(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and

(C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency.

(2)

(A) Service on an agency or corporation of the United States, or an officer or employee of the United States sued only in an official capacity, is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee, agency, or corporation.

and later:

(l) Proof of Service.
If service is not waived, the person effecting service shall make proof thereof to the court. If service is made by a person other than a United States marshal or deputy United States marshal, the person shall make affidavit thereof. Proof of service in a place not within any judicial district of the United States shall, if effected under paragraph (1) of subdivision (f), be made pursuant to the applicable treaty or convention, and shall, if effected under paragraph (2) or (3) thereof, include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court. Failure to make proof of service does not affect the validity of the service. The court may allow proof of service to be amended.

(m) Time Limit for Service.
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1).

 

[paz1960]

Please help!! When you submitted your summons with certified mail delivery notice to the court, Did you attach the greencard which showed the signature and the deliver date with the summon? or just print out the USPS website showed your mail was already delivered? I have not got the certified mail returned card for 3 weeks. How long did it take you to get the returned cards? Today I submitted the summons with the website print-out to the court and the clerk told me this is not good service. I have to wait until I get the returned card. but I saw some cases the summons were submitted with the website printout. So what should I do now?

You can try to mail to the court a similar Certificate of Service as in the attached file.

 

[peter2006]

Thank you very much! paz1960

I will go to the local post office and get the comfirmation first, to see if this works or not. Thanks!!!

 

[paz1960]

Just received motion to dismiss from Attorney office. They listed three reasons:
1. The complaint is should be dismissed because plaintiff cannot establish the existence of a non-discretionary duty to adjudicate his application within a certain time period
2. the complaint should be dismissed because it is brought in the improper venue
3. As a pro-se plaintiff, plaintiff cannot represent his wife.

We are asked to go to court next month. Should we hire a lawyer? Your suggestion is highly appreciated!

To answer reason 1: check the attached Response to Motion and Court Order which allows WOM for a similar case.

I would need to see your complaint (with no personal info) to see, why reasons 2 and 3.

The venue should be:
Pursuant to 28 U.S.C. § 1391(e) venue is proper in this judicial district, because Defendants operate within this district and plaintiff resides in this district.

Maybe you have to provide a proof that you reside in the judicial district of the court where you filed your WOM.

With reason 3, I'm not sure, but I'm afraid that AUSA is right. Pro Se can represent only him(her)self. Maybe you should ammend the complaint and change the plaintiff to your wife's name (if you are asking permanent residence for her).

 

[huxf]

I am sorry to see the responses for USTAPENG' case. But don't give up and keep fighting, you will be there. You are NOT alone.

To paz1960: You mentioned that Pro Se can represent only him(her)self. Does that mean Pro Se can only be done for one person for each case? Can we put two plantiffs there in one Pro Se case?

USTAPENG, did you put only your name as plantiff and requested process aplication for your wife?

 

[khalafah2000]

To answer reason 1: check the attached Response to Motion and Court Order which allows WOM for a similar case.

I would need to see your complaint (with no personal info) to see, why reasons 2 and 3.

The venue should be:
Pursuant to 28 U.S.C. § 1391(e) venue is proper in this judicial district, because Defendants operate within this district and plaintiff resides in this district.

Maybe you have to provide a proof that you reside in the judicial district of the court where you filed your WOM.

With reason 3, I'm not sure, but I'm afraid that AUSA is right. Pro Se can represent only him(her)self. Maybe you should ammend the complaint and change the plaintiff to your wife's name (if you are asking permanent residence for her).

This is a very nice order. I like judges who can think straight

 

[utsapeng]

I am sorry to see the responses for USTAPENG' case. But don't give up and keep fighting, you will be there. You are NOT alone.

To paz1960: You mentioned that Pro Se can represent only him(her)self. Does that mean Pro Se can only be done for one person for each case? Can we put two plantiffs there in one Pro Se case?

USTAPENG, did you put only your name as plantiff and requested process aplication for your wife?

We applied I 485 at the same time. I'm the primary applicant. since both of us stuck in the name check, we listed both of our names on the complaint.

 

[utsapeng]

what's the next step I should do?

1. amend the complaint to only have myself as plaintiff?
2. file a memorandum response?

I'm just wondering what response will do since it already has a court hearing date.

 

[paz1960]

I am sorry to see the responses for USTAPENG' case. But don't give up and keep fighting, you will be there. You are NOT alone.

To paz1960: You mentioned that Pro Se can represent only him(her)self. Does that mean Pro Se can only be done for one person for each case? Can we put two plantiffs there in one Pro Se case?

USTAPENG, did you put only your name as plantiff and requested process aplication for your wife?

I didn't study this possibility, but I remember something reading earlier on this forum, that Pro Se can contain only one Plaintiff, all the cases I saw with multiple Plaintiffs were filed by attorneys. Court clerk should be able to answer this, I guess.

 

[khalafah2000]

60 days clock start time

My lawyer filed the case with the court on Sept 22. Court clerk issued summons on Oct 03. Return of service on PACER says that it was executed in person on Oct 16. Which one is the actual start date of 60 day clock?

 

[paz1960]

1. amend the complaint to only have myself as plaintiff?
2. file a memorandum response?

I'm just wondering what response will do since it already has a court hearing date.

1. Somebody else, who was in this situation should be able to answer your question, I still maintain that it is logical that a complaint filed Pro Se can contain only one Plaintiff, but I may be wrong. My case is N-400, and there it is trivial, because the applications for naturalizations are also individual. BTW, my wife applied in the same time when I applied, she was approved right at the end of the interview (01/27/2005) and she is US citizen since June 2005, I'm stuck in the namecheck 'blackhole'. We have same last names....

2. I would definitely file a Response to the AUSA memorandum, before the hearing date.

 

[paz1960]

My lawyer filed the case with the court on Sept 22. Court clerk issued summons on Oct 03. Return of service on PACER says that it was executed in person on Oct 16. Which one is the actual start date of 60 day clock?

I think that Oct. 16, when the summons was executed. If you try to understand the reason of the 60 day rule, is logical. The defendant(s) or their counsel (AUSA) needs 60 days to answer your complaint. The summons is valable 120 days from the date of issue. Now let's assume that you decide to serve the summons only after 61 days to the defendant, and you count the 60 days from the date of filing the complaint or from the day when the summons was isssued by the Court clerk. In this case the defendants would not have time to answer your complaint. So the clock runs from the date when the summons and complaint was served. This is the reason why you need to file with the court when these things were served (and that's why they want some proof of service).

 

[khalafah2000]

I think that Oct. 16, when the summons was executed. If you try to understand the reason of the 60 day rule, is logical. The defendant(s) or their counsel (AUSA) needs 60 days to answer your complaint. The summons is valable 120 days from the date of issue. Now let's assume that you decide to serve the summons only after 61 days to the defendant, and you count the 60 days from the date of filing the complaint or from the day when the summons was isssued by the Court clerk. In this case the defendants would not have time to answer your complaint. So the clock runs from the date when the summons and complaint was served. This is the reason why you need to file with the court when these things were served (and that's why they want some proof of service).

I wonder why did it take so long (from filing date of Sept 23 to the proof of service on Oct 16)? Is it my lawyer's fault? If true, then basically he wasted 3/4 weeks.