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holding that the immigrant waived his right to all forms of support in a pre-marital agreement and therefore could not enforce the I-864 Affidavit of Support, which was executed by the Defendant one year later
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Civ. No. 10-00072 ACK-KSC.
July 21, 2010
ORDER GRANTING PLAINTIFF'S MOTION TO WITHDRAW COMPLAINT AND DISMISSING THE COMPLAINT WITH PREJUDICE
FACTUAL BACKGROUND
Plaintiff Peter James Blain ("Plaintiff") and defendant Laurie E. Herrell ("Defendant") were married on August 20, 2007. Compl. ¶ 2. Just prior to the marriage, on August 17, 2007, Plaintiff and Defendant signed a Pre-Marital Agreement. The Pre-Marital Agreement unambiguously memorializes the parties' agreement that neither party shall seek any form of support from the other in the event that the marriage should terminate. The Pre-Marital Agreement provides, inter alia, that:
As discussed infra, the parties later divorced. This Court will take judicial notice of various pleadings and orders in the parties' Divorce Proceeding. Pursuant to Fed.R.Evid. 201, a court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b).
Judicial notice is properly taken of transcripts, orders and decisions made by other courts or administrative agencies. See Engine Mfrs. Ass'n v. South Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n. 2 (9th Cir. 2007) (taking judicial notice of oral argument transcript); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of a state court decision and the briefs filed in that court to determine if an issue was raised and decided by the state court for res judicata purposes). . . .Hardy v. County of El Dorado, No. S-07-0799 RRB EFB, 2008 WL 268966, at *5 n. 17 (E.D. Cal. Jan 29, 2008) (some citations omitted); see also Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F. 2d 244, 248 (9th Cir. 1992) (holding that a court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.").
The Court was able to review the docket for the Divorce Proceeding via the Hawai'i State Judiciary Ho'ohiki, the Hawai'i State Judiciary's Public Access to Court Information.http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm. The divorce proceeding is Laurie Herrell Blain v. Peter James Blain, FC-D No. 09-1-0405, filed in the Family Court of the Second Circuit ("Divorce Proceeding"). The Court obtained copies of certain documents filed in the Divorce Proceeding from the Family Court of the Second Circuit. Through this process, the Court has received a copy of the Pre-Marital Agreement, which is attached to this Order (the Court has excluded the last two pages of the Pre-Marital Agreement as those pages include the financial statements of the parties).
As discussed infra, the Court has informed the parties that it has received these documents and inquired whether the parties have any objection to the Court's reliance on them. Defendant has indicated that she has no objection and Plaintiff has not directly answered the Court's inquiry despite repeated requests. Accordingly, because of the procedural posture of this case and the lack of objection by the parties, the Court finds it appropriate to take judicial notice of documents from the Divorce Proceeding in light of the foregoing authority.
2. Husband and Wife enter into this Agreement and into marriage with the intention that their marriage shall endure until death. In recognition that [because of] circumstances unforeseen or unknown at this time, the marriage could be terminated by divorce or separation, Husband and Wife intend by this Agreement to establish their respective rights in all property if the marriage is terminated. . . .
3. Husband and Wife, in further recognition of the [possible] termination of marriage, intend to determine the obligation of each to support the other on divorce, separation, or permanent separation. Husband and Wife, by this Agreement, permanently waive the right to seek support in any form [from] the other in the event of a separation or the termination of the marriage.
. . .
6. This Agreement is made in consideration and contemplation of the marriage and in consideration of the mutual promises granted to each party the right to acquire separate property during the marriage, the right to dispose of his or her estate free from claim from the other party, the right to be free from claims for an equitable division of proper and for support in the event of the termination of the marriage, and the right to be free from claims for support in the event of a separation by the parties during the marriage.
. . .
11. If the marriage should terminate, or should the parties separate, for any reason and without regard to the fault of either party in causing the termination or separation, each party agrees to be solely responsible for his or her own future support after separation, regardless of any unforseen change in circumstances or economic condition or well-being. By this provision, the parties intend to permanently waive all right to alimony, pendente lite alimony, pendente lite support, spousal support, or post-divorce payments of any kind from one party to the other.
Pre-Marital Agreement ¶¶ 3, 6, 11.
Plaintiff is a citizen of Australia and now a permanent resident of the United States. Defendant is a citizen of the United States. In order for Plaintiff to become a lawful permanent resident, on July 21, 2008, Defendant signed a Form I-864 Affidavit of Support on behalf of the Plaintiff. Compl. ¶ 2. Plaintiff became a permanent resident of the United States on December 13, 2008. Compl. ¶ 2. The Plaintiff and Defendant experienced marital difficulties and separated on July 22, 2009. Compl. ¶ 3. On August 4, 2009, Defendant filed a Complaint for Divorce, beginning the Divorce Proceeding.
The instructions to Form I-864 explain that the Form I-864 "is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of support and are not likely to become a public charge." Form I-864 Instructions (Rev. 10/18/07).
PROCEDURAL BACKGROUND
I. State Court Proceedings
A search of the Hawai'i State Judiciary's Public Access to Court Information turns up at least six different cases involving Laurie Herrell and Peter Blain. There is the Divorce Proceeding (2DV09-1-000405), four temporary restraining order actions (2DA09-1-00374, 2DA09-1-000382, 2DA09-1-000403, 2DA09-1-000467), and one landlord/tenant action (3RC09-1-003658).
The Court notes that there is additionally a criminal action against Peter Blain in which Laurie Blain was subpoenaed as a witness. State of Hawaii v. Peter J. Blain, 2FC09-1-00212. The state court docket indicates that there was a judgment of conviction and probation sentence on April 22, 2010.
In the Divorce Proceeding, Plaintiff moved to dismiss the Pre-Marital Agreement. A hearing was held on Plaintiff's motion and on the divorce on December 17, 2009. A Judgment Granting Divorce was entered January 5, 2010, and an Amended Judgment Granting Divorce, correcting a typographical error in the Divorce Proceeding case number, was entered April 12, 2010.
At the hearing, the parties explained to the Court that the divorce decree which was entered on January 5, 2010 had an incorrect case number on it and the divorce decree entered April 12, 2010 corrected that issue. See Hearing Tr. at 7:2-8:3.
The Hawai'i Family Court found that the "Pre-Marital Agreement, signed by and between the parties on August 17, 2009, is a valid legal document binding the parties herein." Order after Hearing on Defendant's Motion to Dismiss Pre-Marital Agreement, Laurie Herrell Blain v. Peter James Blain, FC-D No. 09-1-0405 (Jan. 5, 2010). Accordingly, based upon the Pre-Marital Agreement and the evidence presented at the divorce hearing, the Judgment Granting Divorce and the Amended Judgment Granting Divorce ordered that "neither party shall be required to pay alimony for the other party. Amended Judgment Granting Divorce, Laurie Herrell Blain v. Peter James Blain, FC-D No. 09-1-0405 (filed April 12, 2010).
At the hearing on the divorce and Plaintiff's motion to dismiss the Pre-Marital Agreement, Plaintiff presented the Form I-864 Affidavit of Support as an exhibit. See Defendant's Exhibit List, Attached to Minutes of December 17, 2010, Divorce Hearing, Laurie Herrell Blain v. Peter James Blain, FC-D No. 09-1-0405.
On June 21, 2010, Plaintiff filed a Notice of Appeal in that proceeding.
The Court observes that this appeal will likely be dismissed as untimely. See Hawai'i Rule of Appellate Procedure 4(a) (providing that a notice of appeal in a civil case is to be filed within 30 days after entry of the judgment or appealable order).
II. Federal Court Proceedings
On February 11, 2010, after the Judgement Granting Divorce was entered in the Divorce Proceeding declaring that Plaintiff was not entitled to any support from Defendant, Plaintiff filed a complaint against Defendant in this Court alleging that she has failed to meet her contractual obligation to support him pursuant to a Form I-864 affidavit of support under 8 U.S.C. § 1183a.
On March 22, 2010, Plaintiff filed a Notice of Motion and Motion for Summary Judgment. Doc. No. 12. Accompanying Plaintiff's Notice of Motion and Motion for Summary Judgment, Plaintiff attached a Memorandum of Points and Authorities ("Plaintiff's Motion for Summary Judgment") and a Declaration of Plaintiff ("Blain Declaration") as well as Exhibits A-C. On April 22, 2010, Plaintiff filed a Motion to Change Relief in Motion for Summary Judgment. Doc. No. 17.
On May 10, 2010, Defendant filed an Objection to Motion to Change Relief in Motion for Summary Judgment ("Objection"). Doc. No. 32. Defendant did not file an opposition to the Motion for Summary Judgment. However, a pro se party's pleadings must be liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004);Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); thus, the Court construes Defendant's Objection as Defendant's opposition to the Motion for Summary Judgment.
On May 14, 2010, Defendant filed a Motion to Dismiss Case. Doc. No. 37. The Motion to Dismiss does not specify a basis in the Federal Rules of Civil Procedure.
On May 17, 2010, Plaintiff filed a Motion to Reply to Defendant's Objection to Motion to Change Relief in Motion for Summary Judgment ("Plaintiff's MSJ Reply"). Doc. No. 43. The Court construes this simply as a reply to Defendant's Objection.
On May 18, 2010, Plaintiff filed a Response to Defendant's Motion to Dismiss ("Plaintiff's Response to MTD"). Doc. No. 44.
Also on May 18, 2010, Defendant filed a Motion to Recover Costs. Doc. No. 46.
On May 24, 2010, Plaintiff filed a Response to the Motion to Recover Costs ("Plaintiff's Costs Response"). Doc. No. 51.
On June 1, 2010, a hearing was held on the motions. Pursuant to Local Rule 56.1(e),
If a party moves for summary judgment and the record establishes as a matter of law that another party is entitled to summary judgment against the moving party, the court, in the court's discretion, may enter summary judgment against the moving party after providing that party with oral or written notice and an opportunity to be heard.
Local Rule 56.1(e). Thus, at the hearing on June 1, 2010, the Court informed Plaintiff that it was considering converting Defendant's Motion to Dismiss into a Motion for Summary Judgment. Rough Transcript of June 1, 2010 Hearing ("Hearing Tr.") at 1:12-25. The Court therefore informed Plaintiff that should he wish to put forth any additional evidence, he was permitted to.Id. At the hearing, the Court made it clear that it appeared the Plaintiff had raised the issues that he seeks to litigate in this case in the state court Divorce Proceeding and he had lost. The Court further explained to Plaintiff that as it appeared the state court had ruled against him, there may be a res judicata or Rooker/Feldman issue here because the federal district court is not permitted to overrule a state court's decision. Hearing Tr. at 3:16-4:15.
On June 2, 2010, this Court received a facsimile from Hawai'i Family Court Judge Keith E. Tanaka who presided over the Divorce Proceeding. In that facsimile, Judge Tanaka confirmed that Plaintiff had "argued at trial that he was entitled to support under immigration laws. The Court found no merit to his argument based upon the pre-marital agreement and the evidence presented at trial. Consequently, the Judgment Granting Divorce . . . is absent an award of Alimony." See Memorandum to Judge Alan Kay from Judge Keith Tanaka, dated June 1, 2010, received by facsimile on June 2, 2010 (a copy of which is attached to this Order).
On June 3, 2010, Plaintiff filed a document entitled "Motion for New Summary Judgment Hearing" and a document entitled "Information on Rooker-Feldman Doctrine." Doc. No. 54. In the "Motion for New Summary Judgment Hearing," Plaintiff admitted that he had argued that he was entitled to support based on the Form I-864 in the Divorce Proceeding. See Motion for New Summary Judgment Hearing at 2 (arguing that the "Form I-864 Affidavit of Support was raised as one point in many that the Pre-Marital Agreement should be dismissed"). Plaintiff, however, also asserted that the "State Court ruled on the Pre-Marital Agreement and not Form I-864." Plaintiff attached the Motion to Dismiss Pre-Marital Agreement that he filed in State Court to the Motion for New Summary Judgment Hearing. In the Motion to Dismiss Pre-Marital Agreement, Plaintiff raised the I-864 Form.
On this point, Plaintiff asserted:
On 21 July 2008, Laurie Herrell Blain signed a Federal Government Document (Form I-864 Affidavit of Support Under Section 213A Immigration and Naturalization Act) stating that she would provide sufficient support, and that divorce does not terminate her obligations to me. By signing Form I-864, Laurie Herrell Blain's failure to follow the guidelines set out in Form I-864 can result in her being penalized. Laurie Herrell Blain has stated under oath to Judge Bissen on Thursday 20 August 2009 that she had read Form I-864 before signing the document. By acknowledging this agreement, Laurie Herrell Blain would be aware of her obligations to me in regards to support.
Motion for New Summary Judgment Hearing, Exhibit A (Motion to Dismiss Pre marital Agreement ¶ 4).
On June 4, 2010, the Court sent a letter to both parties informing them that the Court had received a facsimile from Judge Tanaka and certain documents from the Family Court. The Court attached Judge Tanaka's facsimile to the letter and inquired whether the parties had any objections to the Court relying on Judge Tanaka's facsimile and documents received from the Family Court (the Pre-Marital Agreement and the Judgment Granting Divorce). Doc. No. 56.
On June 7, 2010, the Court received via electronic mail a copy of a letter dated June 4, 2010 from Laurie E. Herrell indicating that she had no objection to the Court considering Judge Tanaka's facsimile as well as the documents referenced in the facsimile.
Ms. Herrell also sent a copy of this letter to the court through the United States Postal Service, which was received on June 9, 2010. Doc. No. 57.
Plaintiff on the other hand, did not respond directly to the Court's letter and inquiry. Instead, on June 9, 2010, the Court received a "Statement of Fact on New Motion for Summary Judgment" by electronic mail from Plaintiff with the subject heading "[s]tatement as directed in court letter due Jun 10, 2010." In that document, Plaintiff simply reiterates his arguments that Defendant owes him support based upon the Form I-864.
Plaintiff also submitted this document via the United States Postal Service and it was received on June 14, 2010. Doc. No. 59. The Court also received Defendant's objection to this document by electronic mail on June 15, 2010, and by hard copy delivered by the United States Postal Service on June 16, 2010. Doc. No. 62.
Accordingly, on June 10, 2010, the Court replied to Plaintiff by letter, copied to Defendant, indicating "the Court understands that [Plaintiff has] no objection to the Court considering the matters set forth in the Court's letter dated June 4, 2010." Consequently, the Court requested Plaintiff confirm that the Court's understanding was correct in writing by June 17, 2010. Doc. No. 58.
The Court again did not receive a direct response from Plaintiff. However, on June 15, 2010, Plaintiff filed a one-sentence-long motion to withdraw his complaint ("First Motion to Withdraw Complaint"). Doc. No. 61.
Subsequently, in yet another attempt to provide Plaintiff with adequate notice of the Court's intentions and provide him with ample opportunity to respond with any possible legal or factual argument, the Court issued a Court's Inclination on June 23, 2010. In the Court's Inclination, the Court explained:
[U]nder the circumstances of this case, the Court informs Plaintiff that it is inclined to grant Plaintiff's motion to withdraw his complaint and dismiss the complaint with prejudice.
A dismissal with prejudice would prevent Plaintiff from seeking to relitigate the issues raised in his complaint in federal court. If Plaintiff has any objection to a dismissal of his complaint with prejudice, he is instructed to inform the Court by filing an objection detailing his legal reasoning by July 9, 2010. If the Court has not received any response from Plaintiff by July 9, 2010, it will assume Plaintiff has no objection and dismiss his complaint with prejudice.
In the event that Plaintiff objects or desires to withdraw his Motion to Withdraw the Complaint, the Court instructs Plaintiff to directly respond to the Court's June 10, 2010, letter to the Plaintiff by July 9, 2010.
Court's Inclination at 5.
Nevertheless, Plaintiff did not clearly indicate whether he objected to a dismissal with prejudice. Instead, Plaintiff filed a second document entitled "Motion to Withdraw Complaint" ("Second Motion to Withdraw Complaint"). Doc. No. 66. The Second Motion to Withdraw Complaint, in its entirety, explains:
On July 13, 2010, the Court received a Letter dated from Defendant, dated July 12, 2010 (doc. no. 67), observing that "[t]he court gave Peter J. Blain until July 9th to explain why the Complaint should not be dismissed with prejudice. Plaintiff failed to submit said explanation to the court or the [defendant]."
The Plaintiff (Peter James Blain) after the hearing on Motion for Summary Judgment and Motion to Dismiss on June 1, 2010 before the Honorable Judge Alan C Kay who stated that the U.S. District Court is not an Appeals court under the Rooker-Feldman Doctrine filed an appeal before the Hawaii Intermediate Court of Appeal on the motion to Dismiss the Pre-Marital Agreement (PMA) Laurie Herrell Blain v. Peter James Blain (FC-D-09-1-0405) based on Form I-864 Affidavit of Support and the PMA which was filed June 21, 2010 and has been forwarded to the Appeals Court. (Exhibits A and B).
There[fore] the Plaintiff asks the Court for leave to withdraw his complaint.
Second Motion to Withdraw Complaint.
As noted supra, this appeal is likely untimely pursuant to Hawai'i Rule of Appellate Procedure 4.
Plaintiff did not file any document detailing an objection to the dismissal of his complaint with prejudice by the July 9, 2010 deadline set forth in the Court's Inclination. Nor did Plaintiff withdraw his Motion to Withdraw Complaint; instead he filed the Second Motion to Withdraw Complaint.
On July 15, 2010, six days after the deadline set forth in the Court's Inclination, Plaintiff sent a document entitled "Response to Motion to Dismiss With Prejudice" to the Court via electronic mail. Doc. No. 68. Despite calling this document a "Response," Plaintiff does not detail any objection to the Court granting his Second Motion to Withdraw Complaint and dismissing the Complaint with prejudice. Instead, he simply regurgitates, yet again, the same case law that he has cited in numerous other filings. He does not raise any new issues. Because Plaintiff did not raise any objections (much less any legally valid objections) and still has not answered the Court's June 10, 2010 letter, as he was directed to if he objected or wished to withdraw his Motion to Withdraw Complaint, the Court will rule on Plaintiff's Second Motion to Withdraw Complaint. Furthermore, the Court reiterates that Plaintiff's Second Motion to Withdraw Complaint was filed subsequent to the Court's Inclination.
In his e-mail attaching the Response to Motion to Dismiss With Prejudice, Plaintiff does not provide any good cause for his failure to timely respond. See Electronic Mail from Peter Blain to the Court (July 15, 2010) (doc. no. 68) (apologizing for missing the deadline and explaining "I have been looking for work and studying to go back to school and the date slipped my mind. I will send out paper copies to the Court today as well as the Defendant. Here is my response."). Nevertheless, despite its untimeliness, the Court has reviewed Plaintiff's filing.
DISCUSSION
I. Dismissal With Prejudice Pursuant to Fed.R.Civ.P. 41(a)(2).
Federal Rule of Civil Procedure 41 ("Rule 41") specifies the circumstances under which an action may be dismissed. Once a defendant has filed an answer or motion for summary judgment, a plaintiff cannot dismiss without leave of court. See Rule 41(a)(1)-(2); Hamilton v. Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1535 (9th Cir. 1987). Defendant has filed an answer (doc. no. 9); therefore, Rule 41(a)(2) applies to the case at bar. Under Rule 41(a)(2), "an action may be dismissed at the plaintiff's request only by court order on terms that the court considers proper."
Rule 41(a)(2) motions for voluntary dismissal should be liberally granted, provided that no party will suffer legal prejudice. Stevedoring Serv. of Am. v. Armilla Int'l, 889 F.2d 919, 921 (9th Cir. 1991); see also LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). "The purpose of the rule is to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced." Stevedoring, 889 F.2d at 921. In the Ninth Circuit, the decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the district court's sound discretion and "will not be disturbed unless the court has abused its discretion." Westlands Water Dist. v. U.S., 100 F.3d 94, 96 (9th Cir. 1996) (citations omitted).
Thus, when ruling upon a Rule 41 motion to dismiss without prejudice, the district court must first determine whether the defendant will suffer resultant legal prejudice. Hyde Drath v. Baker, 24 F.3d 1162, 1169 (9th Cir. 1994); Hamilton v. Firestone Tire Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). Plain legal prejudice "is just that-prejudice to some legal interest, some legal claim, some legal argument." Westlands, 100 F.3d at 97. In other words, legal prejudice is shown "where actual legal rights are threatened or where monetary or other burdens appear to be extreme or unreasonable." Id.
Additionally, a district court may consider whether the plaintiff is requesting a voluntary dismissal only to avoid a near-certain adverse ruling. See Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988) (no abuse of discretion in case in which district court refused to dismiss petition without prejudice because motion for dismissal was filed three months after summary judgment motion and magistrate judge had already issued his report and recommendation when the motion to dismiss was made); Maxum Indemnity Insurance Company v. A-1 All American Roofing Co., No. 07-55396, 2008 WL 4833004, *1 (9th Cir. Nov. 3, 2008) (finding that the district court acted within its discretion in dismissing a claim with prejudice because the district court had indicated to both parties how it planned to rule on that claim prior to the motion to dismiss) (citingTerrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988)); see also Infa-Lab, Inc. v. KDS Nail Int'l, No. Civ. 07-01270 WBS EFB, 2007 WL 161197, * 2 (E.D. Cal. Jan. 22, 2009); White v. Donley, No. 05-7728, 2008 WL 4184651, at *3 (C.D. Cal. Sept. 4, 2008) ("[T]he mere temporary avoidance of a claim-dispositive motion is not a legitimate reason to seek dismissal . . . indeed, the avoidance of an adverse ruling is an abusive reason to seek dismissal."); Minnesota Mining Mfg. Co. v. Barr Labs., Inc., 289 F.3d 775, 783 (Fed. Cir. 2002) (holding that the district court did not abuse its discretion in ordering a dismissal with prejudice as the district court had concluded that the plaintiffs were seeking to avoid a judgment that would be adverse to their interests).
In accordance with U.S. Ct. of App. 9th Cir. Rule 36-3, the Court is not relying on this unpublished opinion, although it finds it instructive.
The district court must further determine what conditions, if any, to place upon the dismissal. To alleviate the prejudice resulting from dismissal, courts typically impose costs and attorney's fees upon plaintiff. Id. at 97. However, the imposition of costs and fees is not a prerequisite to grant a voluntary dismissal. Stevedoring, 889 F.2d at 921.
Pursuant to Fed.R.Civ.P. Rule 41(a)(2), the Court hereby grants Plaintiff's Second Motion to Withdraw Complaint and orders that this action be dismissed with prejudice. In light of the history of the Divorce Proceeding and this proceeding (detailed above), the Court finds that Plaintiff only moved to withdraw the Complaint after the Court made it very clear that it was likely Plaintiff was going to lose and the Court would likely be granting summary judgment for Defendant. Furthermore, after Plaintiff moved to withdraw the Complaint, the Court provided Plaintiff with notice that it intended to dismiss the Complaint with prejudice and gave Plaintiff an opportunity to file any objections. He did not. In fact, he reiterated his request by filing the Second Motion to Withdraw Complaint. Accordingly, for the foregoing reasons, it is appropriate to dismiss Plaintiff's Complaint with prejudice.
As discussed supra, although Plaintiff did file a document entitled "Response to Motion to Dismiss With Prejudice" (doc. no. 68), it does not raise any objections, much less any legally valid objections, to the Court's dismissal of his Complaint with prejudice.
II. Alternatively, Plaintiff Has Waived His Right to Support
For completeness of the record, the Court will explain why Plaintiff was likely going to lose and why the Court was likely going to enter summary judgment in Defendant's favor.
Even if the Court were to consider the merits of Plaintiff's claim, the Court would find, as the State Court did, that the Pre-Marital Agreement is a valid and enforceable contract. Thus, the Court would further find that, pursuant to the Pre-Marital Agreement, Plaintiff has waived his right to any and all forms of support from Defendant. The Pre-Marital Agreement very clearly states, inter alia, "[b]y this provision, the parties intend to permanently waive all right to alimony, pendente lite alimony, pendente lite support, spousal support, or post-divorce payments of any kind from one party to the other." Pre-Marital Agreement ¶ 11. The Pre-Marital Agreement was entered into a year prior to Defendant's signature of the Form I-864.
The Form I-864 is a contract between the sponsor (person signing the document) and the U.S. Government. See Form I-864 Instructions. Although it is a contract between the U.S. Government and the sponsor, the immigrant for whose benefit it was executed has a right to enforce the contract. See Form I-864 page 7 (explaining that "[i]f [the sponsor does] not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that [the sponsor] signed, that person may sue [the sponsor] for this support"). Additionally, "any Federal, State, or local governmental agency or private entity that provides any means-tested public benefit to the sponsored immigrant after the sponsored immigrant acquires permanent resident status[] may seek enforcement of the sponsor's obligations through an appropriate civil action." 8 C.F.R. § 213a.2(d).
Accordingly, federal courts have generally found that a sponsored immigrant has the right to sue to enforce a sponsor's I-864 Form obligation. Shumye, 555 F. Supp. 2d at 1023; Younis, 597 F. Supp. 2d at 554; Skorychenko v. Tompkins, Civ No. 08-626-SLC, 2009 WL 129977 at *1 (W.D. Wis. Jan. 20, 2009) (holding that "[a]t this stage, the sole issue is whether plaintiff's complaint states a claim under 8 U.S.C. 1183(a)(e) [sic] and I conclude that it does. . . . an I-864 affidavit of support creates a legal contract that is enforceable in both state and federal court.").
It is however, a basic principle of contract law that a party may waive legal rights and this principle is applicable here.See, e.g., Navellier v. Sletten, 262 F.3d 923, 940 (9th Cir. 2001) (upholding a contractual release explaining that "there are no genuine issues of material fact indicating that the challenged release was either procedurally or substantively unconscionable. As the district court noted, Sletten freely chose to waive his legal rights in order to preserve the stability of the Fund.") In this case, Plaintiff (the sponsored immigrant) signed a contract directly with Defendant, the Pre-Marital Agreement, in which he voluntarily chose to waive his right to any support from Defendant. The Pre-Marital Agreement was entered into a year prior to Defendant's signature of the Form I-864. The State Court ruled that the Pre-Marital Agreement between Plaintiff and Defendant was "a valid legal document binding the parties." Order after Hearing on Defendant's Motion to Dismiss Pre-Marital Agreement, Laurie Herrell Blain v. Peter James Blain, FC-D No. 09-1-0405 (Jan. 5, 2010). Thus, the Court finds that Plaintiff has waived his right to enforce the Form I-864 by entering into the Pre-Marital Agreement. Plaintiff cannot escape his own voluntary choice to enter into the Pre-Marital Agreement in order to marry Defendant.
The Court notes that it is not addressing in any way the right of any federal, state, local or private agency to enforce the Form I-864 against Defendant should any such agency provide any covered means-tested public benefit to Plaintiff. The Court is solely finding that, based upon the Pre-Marital Agreement, Plaintiff has waived his right to enforce the Form I-864 Affidavit of Support against Defendant.
CONCLUSION
For the foregoing reasons, Plaintiff's Second Motion to Withdraw the Complaint is granted. The Complaint is hereby dismissed with prejudice. All other pending motions are hereby terminated and the clerk of the court is directed to close this case.IT IS SO ORDERED.
PRE-MARITAL AGREEMENT
This Pre-Marital Agreement (hereinafter "Agreement") entered into between PETER JAMES BLAIN (hereinafter referred to as "Husband"), whose current mailing address is at 56 John Tebbutt Place, Richmond NSW 2750 Austrailia, and LAURIE E. HERRELL (hereinafter referred to as "Wife"), whose current mailing address is P.O. Box 3086, Wailuku, Hawaii 96793, wishing to marry and yet realizing that the cause of marital discord in numerous instances involves misunderstanding over financial matters, that the laws of conjugal, marital and community property vary widely from place to place and are often misinterpreted when the parties bring property into a marriage, that wishing to prevent such misunderstandings during the course of their relationship, the parties hereby agree to the following:1. That Husband and Wife, parties to this Agreement, intend to define their respective rights in the property of the other during the marriage, and to avoid interest that they might acquire in the property of the other as incident of the marriage if it were not for the operation of this Agreement.
2. That Husband and Wife enter into this Agreement and into marriage with the intention that their marriage shall endure until death. In recognition that circumstances unforeseen or unknown at this time, the marriage could be terminated by divorce or separation, Husband and Wife intend by this Agreement to establish their respective rights in all property if the marriage is terminated. The parties intend to set forth criteria by which property may be classified as separate property or as marital property, recognizing that these criteria might possibly be in variance with those possibly or likely to be applied by a court of law in absence of this Agreement. Husband and Wife do this with the intention of removing property that would otherwise be divisible from the application of equitable distribution in the event of termination of the marriage.
3. Husband and Wife, in further recognition of the termination of the marriage, intend to determine the obligation of each to support the other on divorce, separation, or permanent separation. Husband and Wife, by this Agreement, permanently waive the right to seek support in any form the other in the event of a separation or the termination of the marriage.
4. Husband and Wife further desire to establish the rights of each to inherit from the other in the event of the death of either.
5. That the marital relationship shall not confer upon Wife any conjugal, marital or community property interest in the property described in Exhibit A, which is Husband's separate property or any other property acquired by Husband at any time, now or in the future. Conversely, the marital relationship shall not confer upon Husband any conjugal, marital or community property interest in the property described in Exhibit B, which is Wife's separate property or any other property acquired by Wife at any time, now or in the future.
6. This Agreement is made in consideration and contemplation of the marriage and in consideration of the mutual promises granted to each party the right to acquire separate property during the marriage, the right to dispose of his or her estate free from claim from the other party, the right to be free from claims for an equitable division of property and for support in the event of the termination of the marriage, and the right to be free from claims for support in the event of a separation by the parties during the marriage.
7. The assets and property of Husband listed in Exhibit A, attached hereto and incorporated by reference, together with all income and appreciation in value arising from that property during the marriage regardless of the reason for the said income or appreciation, shall be owned as his separate property during marriage. Likewise, the assets and property of Wife listed in Exhibit B, attached hereto and incorporated by reference, together with all income and increases in value arising from that property during the marriage regardless of the reason for the income or increase, shall be owned as her separate property during marriage All property that either Husband or Wife may acquire by way of gift or inheritance, whether under a Will or by intestate distribution, is similarly the separate property of the owner-party. Any appreciation in value of aforesaid separate property (Category 4 property under current Hawaii divorce law) shall also belong exclusively to the owner-party. All wages, salary, income, deferred compensation, retirement or pension plan benefits, and stock options, of each party earned or received during the marriage, together with all property purchased with such wages, salary, and income, shall also be the separate property of that party. In the event of divorce, Husband and Wife shall be awarded their own separate property as defined in this paragraph herein above.
8. Husband and Wife shall have the absolute and unrestricted right to manage, control dispose of, or otherwise deal with his or her separate property free from any claim that may be made by the other party by reason of their marriage, and with the same effect as if no marriage had been consummated between them. By this Agreement, each party waives, discharges, and releases, all right, title and interest in and to the separate property now owned.
9. During the course of the marriage Husband and Wife may, but shall not be obligated to, make contributions to a fund for the maintenance of their household, or may acquire property in joint names, regardless of the source of funds, which property shall be deemed marital property. Husband and Wife shall have the right in regard to the management of and disposition of all marital property.
10. If the marriage should terminate for any reason or for no reason whatsoever and without regard to the fault of either party in causing the termination, or in the event of a separation, all property as set forth in Exhibits A and B of this Agreement, and separate property as set forth in paragraph 7 of this Agreement, shall remain the separate property of the respective parties, and neither shall claim or have any right to compel the equitable distribution of any separate property. All marital property as referred to in paragraph 9 of this Agreement shall be subject to equal, as opposed to equitable, distribution between the parties.
11. If the marriage should terminate, or should the parties separate, for any reason and without regard to the fault of either party in causing the termination or separation, each party agree to be solely responsible for his or her own future support after termination or separation, regardless of any unforeseen change in circumstances or economic condition or well-being. By this provision, the parties intend to permanently waive all right to alimony, pendente lite alimony, pendente lite support, spousal support, or post-divorce payments of any kind from one party for the support of the other.
12. Subject to Paragraph 18, each party waives and renounces any right to inherit from the other, whether by intestacy, or pursuant to statute or rule of law, pursuant to case law. Each party may determine how the entirety of his or her separate property shall be distributed at the time of his or her death by his or her own Last Will and Testament.
13. Each party agrees to release the other party from all claims and liabilities, except as specified in this Agreement. Neither of the parties to this Agreement Shall be responsible for the debts of the other party that have accumulated up to the time of the signing of this Agreement, and neither of the parties shall be responsible for any debts contracted after the signing of this Agreement unless both parties have agreed to assume these debts.
14. Husband and Wife covenant that they shall willingly, at the request of the either party, or his or her success or assigns, execute, deliver, and properly acknowledge whatever additional instruments may be required to carry out the intention of this Agreement, and shall execute, deliver, and properly acknowledge any deeds or other documents so that good and marketable title to any property can be conveyed by one party free from any claim of the other party.
15. This Agreement is entered into assuming that Husband and Wife are to be married, and its effectiveness is expressly conditioned on the marriage between the parties actually taking place. If, for any reason, the marriage is not consummated, the Agreement will no longer be of no force or effect.
16. This Agreement contains the entire understanding of Husband and Wife, and no representations or promises have been made except as contained in this Agreement.
17. Nothing in this Agreement shall affect the right of either party voluntarily to transfer real or personal property to the other party, or the right to receive property transferred by the other, during their lifetime.
18. Nothing in this Agreement shall affect the right of either party to devise or bequeath property to the other party in excess of that required by this Agreement. Nothing in this Agreement shall be construed as a waiver or renunciation of the right of either party to take under the Last Will of the other.
19. The parties and their respective heirs, devisees, legatees, personal representatives, guardians, successors in interest, and assigns shall be bound by the provisions of this Agreement.
20. This Agreement may only be altered during the marriage by written consent of both parties.
21. The parties agree that if any provision of this Agreement is determined unlawful, or is held unenforceable for any reason, such will not affect the validity of any and all provisions of the Agreement. Moreover, if the parties, whether by express Agreement or by conduct, alter one or more provisions of this Agreement, shall will not affect the other provisions of this Agreement.
22. Each party to this Agreement gave given the other a full and complete disclosure of the assets, income and property of the Husband's and Wife's estate. Husband's assets and property include those listed in Exhibit "A", attached hereto and incorporated by reference. Wife's assets and property include those listed in Exhibit "B", attached hereto and incorporated by reference.
23. Husband and Wife acknowledge that each has had the opportunity to be represented by independent counsel before executing this Agreement; that counsel representing each party was of the party's own choosing; and that Husband and Wife elect, on the advise of his or her independent counsel, to enter into this legally binding contract voluntarily and without duress or coercion of any kind. Further, both Husband and Wife acknowledge that, although counsel for Husband has drafted this Agreement, this Agreement memorializes the discussions and agreements the parties had already entered into.
24. This Agreement is to be governed by the laws of the State of Hawaii.
25. Both parties covenant that they shall willingly at the request of either party execute, deliver, and properly acknowledge whatever additional instruments may be required to carry out the intentions of this Agreement if the parties move to another state.
Fully executed this 17 day of August, 2007.
STATE OF HAWAII ) )SS COUNTY OF MAUI ) On August 17, 2007, PETER JAMES BLAIN personally appeared before the undersigned, a Notary Public, and acknowledged that he signed the foregoing Pre-Marital Agreement. STATE OF HAWAII ) )SS COUNTY OF MAUI ) On August 17, 2007, LAURIE E. HERRELL personally appeared before the undersigned, a Notary Public, and acknowledged that he signed the foregoing Pre-Marital Agreement. MEMORANDUM TO : Judge Alan Kay FROM : Keith Tanaka DATE : June 1, 2010 RE : Peter Blain A divorce trial was held on December 17, 2009. The Court found that the Pre-Marital Agreement signed by the parties on August 17, 2007 (see attached) to be a valid and enforceable contract. Paragraph 3, page 2, of the Pre-Marital Agreement reflects the parties "permanently waive the right to seek support in any form . . ." Further, paragraph 11 on page 5 states the parties "permanently waive all right to alimony . . ."Defendant argued at trial that he was entitled to support under immigration laws. The Court found no merit to his argument based upon the pre-marital agreement and the evidence presented at trial. Consequently, the Judgment Granting Divorce (see attached) is absent an award of alimony.
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