annat said:
Hi All,
I just checked Pacer and AUSA filed Response to Order to Show Cause today, where they are talking about why my case should be dismissed.(Danilov v Aguirre, Moral character determination, how USCIA is working hard and so on, I think I saw some people getting such things)
It also says that on 09/18/2006 USCIA requested FBI to expedite name check.
What should I do next? How do I answer? When should I do it? Will court ask me to respond or not?
I do have my FOIA that I have not yet edit to the case.
Any help, ideas, samples will be much appreciated.
Thank you
Dear Annat,
There is nothing unusual or unexpected in your case. I believe that you are already in much better situation that you were before you filed this complaint. You have now the certainty that your case is finally moving. The USCIS requested an expedited name check from FBI, they asked you to do a second set of fingerprints. From the past experience of members of this forum, these are all good signs.
AUSA had to file something because the deadline. They filed this Response to Order to Show Cause, which I assume (you were not very explicit) that contains a motion to dismiss your complaint lack of jurisdiction (if they argued with Danilov v. Aguirre, they probably recycled that twisted argument that the 120 days begins not after your interview but only after the security background check is complete).
You definitely have to file an Opposition to the Defendants Motion to Dismiss. If you leave it unanswered, the judge just can order by default and grant the motion of the defendant, i.e., throw out your complaint.
Your opposition has to address the allegations of the AUSA, i.e., you have to state punctually, why do you believe that they are wrong and why your complaint should not be dismissed. You have to make reference to the statutes, regulations and case law (i.e. citing cases where the decisions support your cause).
You should read Chapter 5, page 50-56 from the Pro Se handbook I posted couple of postings ago.
Here is a short explanation how this whole process works (it is from this Pro Se handbook):
Filing and serving a complaint is the first step in a lawsuit. After that, whenever you want the court to do something, you need to make a motion. Basically, a motion is a formal request you make to the court. Rule 7(b) of the Federal Rules of Civil Procedure requires all motions to be made in writing, except for motions made during a hearing or trial. You may make verbal (or
“speaking”) motions during a hearing or trial, but even then the court may ask you to put your motion in writing.
Usually, the following things occur when a motion is filed. First, one side files a motion explaining what they want the court to do and why the court should do it. The party who files a motion is referred to as the “moving party.” Next, the opposing party files an opposition brief explaining why it believes the court should not grant the motion. Then the moving party files a reply brief in which it responds to the arguments made in the opposition brief. At that point, neither side can file any more documents about the motion without first getting permission from the court. Once all of the papers relating to the motion are filed, the court can decide the motion based solely on the arguments in the papers, or it can hold a hearing. If the court holds a hearing,
each side has an opportunity to talk to the court about the arguments in their papers. The court then has the option of announcing its decision in the courtroom (ruling from the bench), or to further consider the motion (taking the motion under consideration) and send the parties a written decision.
So my interpretation is that you will not receive any instruction from the court, but you are supposed to file an Opposition to the Defendants Motion to Dismiss. I vaguely remember that I read somewhere what is the rule for the timing (i.e., how many days you have to file an Opposition) but I don't remember exactly. If I find this info I will post it here on the forum.
