1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

DEFENDANT’S OMNIBUS REPLY FOR DEFENDANT’S AND PLAINTIFF’S MOTION(S) 

FOR JUDGMENT ON THE PLEADINGS

CASE 3:17 – CV – 00765

1

Jeffrey B Neustadt SBN 57889 

PO Box 170249

San Francisco, CA 94117

Tel: 415-434-4440

Fax: 415-962-4221

email: jbneustadtlaw@sbcglobal.net

Attorney for Defendant, Edward Dorsaneo

UNITED STATES DISTRICT COURT - NORTHERN DISTRICT OF CALIFORNIA

TETYANA DORSANEO,

Plaintiff,

vs.

EDWARD DORSANEO,

Defendant

Case No.: 3:17 – CV – 00765

OMNIBUS REPLY FOR DEFENDANT’S 

AND PLAINTIFF’S MOTION(S) FOR 

JUDGMENT ON THE PLEADINGS

FRCP 12(c), (h)(2)

Date: July 20, 2017

Time: 10:00am

Dept: Courtroom 4 / 17th Floor

Judge: Hon. Vince Chhabria

OMNIBUS REPLY FOR DEFENDANT’S and PLAINTIFF’s MOTION(S) FOR 

JUDGMENT ON THE PLEADINGS

The issues to be decided by this Court within the context of these motions are narrow:

1) What is the applicable law?

2) Are there material disputed facts in relation to the motion of a party? If so, they are fatal to a

motion for judgment on the pleadings of that party.

3) What are the due process rights of each party?

In light of those material disputed facts outlined below and controlling law such as 

MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. Wash. 2006) and FRCP 

8(b)(5) regarding those “facts” in the context of these motions, this Court should not grant 

Plaintiff’s request for Judgment on the Pleadings.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

DEFENDANT’S OMNIBUS REPLY FOR DEFENDANT’S AND PLAINTIFF’S MOTION(S) 

FOR JUDGMENT ON THE PLEADINGS

CASE 3:17 – CV – 00765

2

In light of the mandates from Congress summarized below and the facts alleged in the 

Plaintiff’s complaint, this Court is respectfully requested to grant the Defendant’s motion for 

Judgment on the Pleadings and dismiss this case with prejudice.

The Defendant respectfully requests that this court deny Plaintiff’s Request for Judicial 

Notice – ECF # 39.

DISPUTED MATERIAL FACTS REMAIN AS TO PLAINTIFF’s MOTION AND 

PLAINTFF’S MOTION SHOULD NOT BE GRANTED

1. There remain material disputed facts related to the void nature, validity and enforceability, 

and termination of obligations of the contract denoted by form I-864. In particular some of 

the Disputed Material Facts include, but are not limited to:

a. Disputed: The plaintiff is a ‘lawful permanent resident (“LPR”) of the United States of 

America’ – Complaint ¶ 8 – ECF #1, disputed by Answer ¶ 4 – ECF #12, Amended 

Answer ¶ 5 –ECF #35.

b. Disputed: “None of the Terminating Events set forth in the Contract have occurred” 

Complaint ¶ 32, disputed by Answer ¶ 9, Amended Answer ¶ 15.

c. Disputed: a valid and enforceable contract was formed. Complaint ¶¶ 29, 35-40, 

disputed by Answer ¶¶ 9, 10; Amended Answer ¶¶ 13, 16-81; Answer – Affirmative 

Defenses 

2. The Defendant’s statements in Answer ¶¶ 4, 9-10; Amended Answer ¶¶ 5, 13, 15-81 are 

effective denials of Plaintiff’s allegations- FRCP 8(b)(5) in light of the test outlined in 

MacDonald, supra holding that (“We [...] treat as false those allegations in the answer that 

contradict MacDonald's [Defendant’s] allegations.”) citing to Smith v. Pacific Props. & Dev. 

Corp., 358 F.3d 1097, 1100 (9th Cir.2004).
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

DEFENDANT’S OMNIBUS REPLY FOR DEFENDANT’S AND PLAINTIFF’S MOTION(S) 

FOR JUDGMENT ON THE PLEADINGS

CASE 3:17 – CV – 00765

3

3. Plaintiff appears to misunderstand the effect of FRCP 8(b)(5) on the facts at issue in her 

motion and thus has not met her burden of establishing “on the face of the pleadings that no 

material issue of fact remains to be resolved and that [she] is entitled to judgment as a matter 

of law” – MacDonald, supra.

4. The disputed facts may be resolved by due process, including, but not limited to: (1) 

discovery, (2) party admission, (3) determination by a jury as trier of fact.

5. Accordingly, this Court should not grant Plaintiff’s motion, since, in light of those Disputed 

Material Facts, as she has not established the truth of material facts on the face of her 

pleadings.

NO DISPUTED MATERIAL FACTS REMAIN AS TO

DEFENDANT’S MOTION TO DISMISS

6. The Plaintiff alleges that she was granted LPR status as of February 5, 2014. Complaint ¶ 

30. For the purposes of Defendant’s Motion to Dismiss, this is deemed a true fact. –

Macdonald, supra.

7. In her Opposition, Plaintiff submits to the Court, couched as a Request for Judicial Notice, a 

barely legible receipt dated April 7, 2017 – ECF # 39. This receipt does not support her 

position as it is dated more than 3 years after the grant of LPR status she has alleged. The 

provenance and context of this receipt are unknown at this time and subject to discovery and 

evidentiary objection which is raised hereby.

8. The legal standard created by Congress to which the Secretary of the Department of 

Homeland Security is held specifies a period of maximum 2 years after an initial grant of 

LPR status before such status is terminated as a matter of law. The Plaintiff has offered 
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

DEFENDANT’S OMNIBUS REPLY FOR DEFENDANT’S AND PLAINTIFF’S MOTION(S) 

FOR JUDGMENT ON THE PLEADINGS

CASE 3:17 – CV – 00765

4

nothing in properly supported evidence to mitigate any conclusions following the lapse of 

two years.

9. The lapse of two years is fatal to her claim -- 8 U.S. Code § 1186a(b)(2), 8 U.S. Code § 

1186a(c)(2)(A)(ii), 8 U.S. Code § 1186a(c)(4), 8 CFR § 216, Form I-751.

10. Accordingly, this Court should grant Defendant’s motion to dismiss the case, with prejudice, 

as a matter of law.

CONCLUSION

Defendant respectfully requests that this Court dismiss the complaint, with prejudice, on 

the basis of the facts and legal conclusions set forth herein and deny her Request for Judicial 

Notice. In the alternative, Defendant respectfully requests that this Court deny Plaintiff’s motion 

for judgment on the pleadings, schedule discovery, and set this case for trial as to the remaining 

genuine issues of disputed material facts.

Dated this 28th day of June, 2017.

/s/ Jeffrey B Neustadt

Jeffrey B Neustadt

Attorney for defendant, EDWARD DORSANEO