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

[wom]

As I wrote before, my judge issued a notice to confer with defendants' counsel and submit 26(f) report. I've found one such report through PACER, in which a series of important dates is set. My question: Do I get to choose too? What are the particularly important dates to define?

Set forth dates for the following:
a. 26(a) Disclosures: September 30, 2005
b. Joinder of additional parties: December 15, 2005
c. Pleadings to be amended: December 15, 2005
d. Fact discovery completed (liability only) January 17, 2006
e. Phases or limitations on discovery: The parties agree that discovery should be bifurcated between liability and damages. The following deadlines are for liabilityrelated discovery.
f. Plaintiffs’ expert reports (liability) January 31, 2006
g. Depositions of Plaintiffs’ expert completed February 28, 2006
h. Defendant’s expert reports (liability) January 31, 2006
i. Depositions of Defendant’s experts completed February 28, 2006
j. Third party expert reports N/A
k. Deposition of third party experts N/A

 

[Moon_g]

congratulations for PAZ1960

Congratulations for your victory, PAZ1960! and Thank you for your helps for everyone here. We can see, you have very high reputation in this forum.

Moon_g

 

[paz1960]

As I wrote before, my judge issued a notice to confer with defendants' counsel and submit 26(f) report. I've found one such report through PACER, in which a series of important dates is set. My question: Do I get to choose too? What are the particularly important dates to define?

Set forth dates for the following:
a. 26(a) Disclosures: September 30, 2005
b. Joinder of additional parties: December 15, 2005
c. Pleadings to be amended: December 15, 2005
d. Fact discovery completed (liability only) January 17, 2006
e. Phases or limitations on discovery: The parties agree that discovery should be bifurcated between liability and damages. The following deadlines are for liabilityrelated discovery.
f. Plaintiffs’ expert reports (liability) January 31, 2006
g. Depositions of Plaintiffs’ expert completed February 28, 2006
h. Defendant’s expert reports (liability) January 31, 2006
i. Depositions of Defendant’s experts completed February 28, 2006
j. Third party expert reports N/A
k. Deposition of third party experts N/A

Contact AUSA and discuss with him/her these dates and details. Most likely (s)he did such things in the past and will have a much better knowledge about this than we do. Tell him/her that your interest is to put the shortest times everywhere because you want to have to get a decision from the judge as soon as possible. Most of the points are anyway irrelevant for such types of cases, there is no liability, no compensation sought for damages, etc. There will be no third party experts, probably no experts at all, there will be most likely no disputed factual allegations, it is merely an interpretation of law. Before you agree to sign anything, post here the AUSA's draft and we can take a look and suggest eventually some changes.

 

[paz1960]

I am planning to file the WOM soon, but it is very possible that I will relocate to another state very soon too.
Can anyone tell me what will happen if I change a job and relocate to another state after filing the WOM? Should I file the WOM after relocating? But the problem is that the relocated state is not where I filed my I-140 and I-485? Can anyone give me your precious suggestion? Thanks a lot.

If you relocate, first of all, you will need to report your new address to USCIS in 10 days. There are some potentially very serious consequences failing to do so.

If you already filed your lawsuit, you need to report the address change also to the court. Your case will be most probably transferred to your new district court. In my opinion, if this address change is imminent, wait with the lawsuit till you have a new address and file the complaint in the new district. The other thing what you can do, that you file the lawsuit in one of the districts, where one of the defendants performs substantial part of the business which affected you, i.e, in the district where the USCIS Service Center is located. Of course, this may not be too convenient, because the possible large distance between your residence and the district court.

I saw couple of cases in San Diego where AUSA challenged the venue, arguing that an alien can't claim residence in the USA so (s)he can't file a lawsuit in the district where (s)he resides (because (s)he doesn't have a residence). In this AUSA's opinion, the proper venue would be in a district where a defendant performs substantial part of his/her business. I didn't follow the outcome of these cases, so I don't know if the judge dismissed or not the lawsuits because improper venue. But clearly, most of the WOM cases were not challenged on this basis and many Plaintiffs were successful filing their complaints in the district where they reside.

 

[cacd07]

I finally found my case in PACER and regarding PROOF OF SERVICE it says:

PROOF OF SERVICE Executed by plaintiff Alberto Gonzales, upon Robert S Mueller served on 1/16/2007, answer due 3/17/2007; Michael Chertoff served on 1/16/2007, answer due 3/17/2007; ...... Alberto Gonzales served on 1/16/2007, answer due 3/17/2007. The Summons and Complaint were served by DELIVERY, by Federal statute. Service accepted by CIVIL PROCESS CLERK on behalf of THE UNITED STATES ATTORNEY. Original Summons NOT RETURNED. (esa,) (Entered: 02/01/2007)

So should I just return my original Summons page to the court clerk? Everything else looks normal? Thanks!

 

[sksharma76]

I believe you are in same district as mine. You are in Fourth district court right?

Yes i am in the same district as you are

 

[wenlock]

Paz and other big members of this forum. I need little help in understanding how to cite cases in my opposition to motion to dismiss. I see number of different ways of Citing case references.

Paz I see you used word pleading template for preparing your opposition under pleading toolbar it asks you enter long or short cite reference. Can you elaborate what does it means if you know any thing about this.

 

[paz1960]

I finally found my case in PACER and regarding PROOF OF SERVICE it says:

PROOF OF SERVICE Executed by plaintiff Alberto Gonzales, upon Robert S Mueller served on 1/16/2007, answer due 3/17/2007; Michael Chertoff served on 1/16/2007, answer due 3/17/2007; ...... Alberto Gonzales served on 1/16/2007, answer due 3/17/2007. The Summons and Complaint were served by DELIVERY, by Federal statute. Service accepted by CIVIL PROCESS CLERK on behalf of THE UNITED STATES ATTORNEY. Original Summons NOT RETURNED. (esa,) (Entered: 02/01/2007)

So should I just return my original Summons page to the court clerk? Everything else looks normal? Thanks!

Yes, fill out the confirmation part of the original summonses (in some districts this is at the bottom half of the first, and only page, in some other districts this is on the second page), make copies for yourself and return them to the court.

 

[paz1960]

Paz and other big members of this forum. I need little help in understanding how to cite cases in my opposition to motion to dismiss. I see number of different ways of Citing case references.

Paz I see you used word pleading template for preparing your opposition under pleading toolbar it asks you enter long or short cite reference. Can you elaborate what does it means if you know any thing about this.

The way how I did it is the following (maybe there are some other ways to do it):
-I inserted a Table of Authorities and I used only first time in the body of the Opposition the long form of the citation, after that I used only the short form, e.g., "Danilov v. Aguirre". Word will look in the entire text and will put in the citation table all the instances where that particular citation appears. If you click on the Switch/Hide (the paragraph sign) on the Standard toolbar, you will be able to see the TA entries. In the Word Help, you can get the full description how to use this Table of Authorities feature.

 

[gmlvsk]

I see from pacer in Maryland AUSAs started filing motions to dismiss

 

[786riz]

This trend will be in all district courts

You are right gmlvsk; we all will see the same trend in all district courts. Spoke to my friend who filed WoM through an attorney who used to be an AUSA. His attorney told him that FBI is very upset on USCIS for this name expedite thing. Per him that the direction for all AUSA is to fight hard in all cases, especially in WoM cases. It will be tough for AUSA to win but they could stall case for some time and in some district they can get case remanded to USCIS with no specific direction.
Therefore, we have to be ready for this long battle. Study the cases that have motions and counter motions and prepare ours.

I see from pacer in Maryland AUSAs started filing motions to dismiss

 

[lotechguy]

I see from pacer in Maryland AUSAs started filing motions to dismiss

I browsed through 890 code cases from Oct 20 in Maryland and dint find any with AUSA motions. Can you point me to one case ? You can also PM me.

 

[gmlvsk]

I will pm you, since case is still open

I browsed through 890 code cases from Oct 20 in Maryland and dint find any with AUSA motions. Can you point me to one case ? You can also PM me.

 

[gmlvsk]

Remember, some filed under 540

I browsed through 890 code cases from Oct 20 in Maryland and dint find any with AUSA motions. Can you point me to one case ? You can also PM me.

 

[sa7797]

Folks- Lets support all who are filing cases to resolve this never lasting "Back Ground" checks . This can make every one life better then today. Good Luck All

 

[wom]

Pez!

Appreciate your responses

 

[bobyang3]

I just wonder which form do you fill for WOM? I went to the court web site and I found a lot of form but I am not sure which one I should use. thank you!

http://www.hid.uscourts.gov/hid/courtinfo.nsf/forms?OpenView&Start=1&Count=250&Expand=1#1


AO 133 - Bill of Costs --Fillable PDF Form
AO 187 - Exhibit and Witness List --Fillable PDF Form
AO 240 - Application to Proceed In Forma Pauperis --Fillable PDF Form
AO 241 - Petition for Writ of Habeas Corpus (Revised 12/04) --PDF Form
AO 243 - Motion to Vacate/Set Aside Sentence (Revised 12/04) --PDF Form
AO 398 - Notice of Lawsuit-Request for Waiver --Fillable PDF Form
AO 399 - Waiver of Service of Summons --Fillable PDF Form
AO 440 - Summons in a Civil Action --Fillable PDF Form
AO 441 - Third Party Summons in a Civil Action --Fillable PDF Form
AO 88-Subpoena in a Civil Case --Fillable PDF Form
Application to Proceed In Forma Pauperis (Prisoner Non-Habeas Complaint) --Fillable PDF Form
Application to Proceed Informa Pauperis Instructions --Instruction Sheet
Certification of Judgment for Registration in Another District --Fillable PDF Form
Civil Rights Complaint by a Prisoner --Fillable PDF Form
Civil Rights Complaint by a Prisoner Instructions --Instruction sheet for filling out a Civil Rights Complaint Form
HID Form 85 - Consent to Exercise Jurisdiction Magistrate Judge --Fillable PDF Form (New revised form 12/15/03)
HID Form 85a - Consent to Exercise Jurisdiction Magistrate Judge --Use this "plain" version to manually fill out the form
JS 44-Civil Cover Sheet (Revised 11/04) --Fillable PDF Form

 

[paz1960]

I just wonder which form do you fill for WOM? I went to the court web site and I found a lot of form but I am not sure which one I should use. thank you!

http://www.hid.uscourts.gov/hid/courtinfo.nsf/forms?OpenView&Start=1&Count=250&Expand=1#1


AO 133 - Bill of Costs --Fillable PDF Form
AO 187 - Exhibit and Witness List --Fillable PDF Form
AO 240 - Application to Proceed In Forma Pauperis --Fillable PDF Form
AO 241 - Petition for Writ of Habeas Corpus (Revised 12/04) --PDF Form
AO 243 - Motion to Vacate/Set Aside Sentence (Revised 12/04) --PDF Form
AO 398 - Notice of Lawsuit-Request for Waiver --Fillable PDF Form
AO 399 - Waiver of Service of Summons --Fillable PDF Form
AO 440 - Summons in a Civil Action --Fillable PDF Form
AO 441 - Third Party Summons in a Civil Action --Fillable PDF Form
AO 88-Subpoena in a Civil Case --Fillable PDF Form
Application to Proceed In Forma Pauperis (Prisoner Non-Habeas Complaint) --Fillable PDF Form
Application to Proceed Informa Pauperis Instructions --Instruction Sheet
Certification of Judgment for Registration in Another District --Fillable PDF Form
Civil Rights Complaint by a Prisoner --Fillable PDF Form
Civil Rights Complaint by a Prisoner Instructions --Instruction sheet for filling out a Civil Rights Complaint Form
HID Form 85 - Consent to Exercise Jurisdiction Magistrate Judge --Fillable PDF Form (New revised form 12/15/03)
HID Form 85a - Consent to Exercise Jurisdiction Magistrate Judge --Use this "plain" version to manually fill out the form
JS 44-Civil Cover Sheet (Revised 11/04) --Fillable PDF Form

Besides your complaint, you need a Civil Cover Sheet and summonses for each defendant + US Attorney's Office in your federal district + US Attorney General (if he is a party, you don't need second set).

 

[wom]

60 day rule

where does the 60-day rule come from? in my case the clerk put down 20 days (on summonses) for defendants to respond

 

[paz1960]

where does the 60-day rule come from? in my case the clerk put down 20 days (on summonses) for defendants to respond

Rule 12(a)(1) of the Federal Rules of Civil Procedure states that unless a different time is specified in a United States statute, most defendants must file a written response to the complaint within twenty days after being served with the summons and complaint.

BUT

Rule 12(a)(3)(A) of the Federal Rules of Civil Procedure states that the United States, an agency of the United States, or an officer or employee of the United States sued in an official capacity must file a written response to the complaint within sixty days after the United States Attorney is served.