United States District Court, D. Delaware
JACKIE F. YATES, Plaintiff,
DAVID T. YATES, Defendant.
F. Yates, Dover, Delaware, Pro Se Plaintiff.
T. Yates, Fairless Hills, Pennsylvania, Pro Se Defendant.
U.S. District Judge.
Jackie F. Yates ("Plaintiff') filed this action on
April 25, 2014. She proceeds pro se and was granted
in forma pauperis status. She filed this complaint
against her former spouse, David Y. Yates
("Defendant"), to enforce a Section 213A affidavit
of support under the Immigration and Nationality Act
("the Act"), 8 U.S.C. §
1182(a)(4)(A). The Court has jurisdiction by reason of a
federal question pursuant to 28 U.S.C. § 1331.
before the Court are Plaintiffs request for default, motion
to amend, and motion for issuance of a subpoena duces tecum
(D.I. 29, 31, 37) and Defendant's motion to dismiss and
motion for summary judgment (D.I. 30, 38). Having reviewed
the case, the Court determines that dismissal is appropriate
due to res judicata or claim preclusion.
filed this lawsuit on April 25, 2014. Plaintiff seeks
enforcement of an affidavit of support and compensatory
damages to support herself and her son, to provide housing,
to pay her school loans and for her education, and to provide
Court takes judicial notice that on April 21, 2006, Plaintiff
commenced a civil action in the United States District Court
for the Eastern District of Pennsylvania against Defendant,
Yates v. Yates, Civ. No. 06-1691 -RBS (E.D. Pa. Apr.
21, 2006) ("EDPA Action"). Like the instant case,
the action was brought pursuant to the Immigration and
Nationality Act and sought to enforce an affidavit of support
under § 213A of the Act that Plaintiff, an alien,
alleged Defendant, as her sponsor, executed on August 20,
1999. (Id. at D.I. 1) In the affidavit, the sponsor
agrees to provide support to maintain the sponsored alien at
an annual income that is not less than 125 percent of the
federal poverty line during the period in which the affidavit
is enforceable. (Compare D.I. 2 with Civ. No.
06-1691-RBS at D.I. 1) On April 7, 2007, the EDPA Action was
dismissed with prejudice for Plaintiffs failure to comply
with court orders. (See Civ. No. 06-1691-RBS at D.I.
who proceeds pro se, advised the Court of the EDPA
Action in both his answer to the complaint and his motion to
dismiss. (See D.I. 27 at 1, 3; D.I. 30 at 1)
Defendant moves to dismiss on the grounds of improper service
and asserts the affirmative defense of res judicata. (D.I.
30) He moves for summary judgment on the grounds that: (1)
Plaintiffs claims are barred by res judicata and collateral
estoppel; (2) Plaintiff cannot produce the alleged original
1-894 Form upon which she relies and, therefore, cannot state
a claim for breach of contract; (3) Plaintiff cannot
demonstrate that she was in the United States legally at the
time the alleged 1-864 form was signed and, therefore, the
form is void ab initio; and (4) no consideration exists for
the alleged contract obligation. (D.I. 38) Plaintiff seeks an
entry of default, moves to amend, and seeks issuance of a
subpoena duces tecum. (D.I. 29, 31, 37)
Fed.R.Civ.P. 12(b)(4) and 12(b)(5)
12(b)(4) permits a motion to dismiss for "insufficiency
of process." Rule 12(b)(5) permits a motion to dismiss
for "insufficiency of sendee of process."
"[D]istrict courts possess broad discretion to either
dismiss the plaintiffs complaint for failure to effect
service or to simply quash service of process. However,
dismissal of a complaint is inappropriate when there exists a
reasonable prospect that service may yet be obtained. In such
instances, the district court should, at most, quash service,
leaving the plaintiffs free to effect proper
sendee." Umbenhauer v. Woog, 969 F.2d 25, 30
(3d Cir. 1992) (finding district court abused its discretion
in dismissing complaint for improper sendee where "the
plaintiffs were not time-barred from serving process, and no
other basis for dismissal of the plaintiffs' complaint
appearjed] in the record").