NOTICE OF MOTION TO ENFORCE COURT ORDER

SCOTT ALAN ANDERSON 

[ENTER ADDRESS]

Defendant in Pro Per

NOTICE TO INGE T. ANDERSON, AND TO THE PLAINTIF’S ATTORNEY(S) OF RECORD, IF ANY, AND SPECIAL NOTICE TO THIS HONORABLE COURT:

NOTICE IS HEREBY GIVEN that on [ENTER DATE] or as soon thereafter as the matter may be heard, in this court, located at 700 Stewart Street, Suite 2310 Seattle, WA 98101, Defendant, SCOTT ALAN ANDERSON (hereinafter “Defendant”) will, and hereby does, move for an Order to enforce this Court’s previous Court Order.

This Motion is made on the grounds that Plaintiff has failed to adhere to this Court’s previous Order. Also, Plaintiff has refused to accept payment from the Defendant, as ordered in the Court’s previous Order.  

This Motion is based on this Notice, the pleadings in the Motion, and on such further oral and/or documentary evidence as may be presented or judicially noticed at the hearing of this Motion.

INTRODUCTION

This case involves the fulfillment of contractual obligations under Form I-864 hereinafter “the Affidavit of Support.” The Plaintiff filed an equitable claim for specific performance upon which the Court issued an Order clarifying the parties’ obligations thereby.  

However, the Plaintiff has refused to honor her obligations and/or to truthfully disclose the required information per the aforesaid Court Order. Defendant therefore seeks an Order from this Court to enforce the said Court Order.  

FACTUAL BACKGROUND

The Defendant signed the Affidavit of Support in June 2011, in favor the Plaintiff who originates from Netherlands. Under the Affidavit of Support, the Defendant was obligated to maintain Plaintiff’s income to ensure it is at least 100% of the federal poverty level. The Affidavit of Support also provided for grounds upon which the obligations of the parties would end. These include: if the Plaintiff becomes a citizen of the United States; if the Plaintiff has worked or has received a credit under the Social Security Act; if the Plaintiff no longer resides in the U.S.; if Plaintiff is subjected to a removal proceeding, and files an adjustment of status is made; or if either or both the Plaintiff and Defendant dies. 

Consequently, Plaintiff filed a Complaint against Defendant alleging that Defendant had breached his support obligations under the Affidavit of Support. The jury found that the amount Defendant owed the Plaintiff in 2016 was $ 2,868 and $ 7,826 for 2019. Plaintiff then filed an equitable claim for specific performance. 

This Honorable Court entered an Order on November 4, 2019. In the Order, the Court observed that a contract indeed existed between Plaintiff and Defendant pursuant to the Affidavit of Support. The Court further observed that the Defendant’s obligation would continue unless terminated by one of the events outlined under the Affidavit of Support. Also the Court ordered that the Defendant’ payment obligation should be prorated such that Defendant makes monthly payments to Plaintiff to enable Plaintiff meet her monthly expenses. 

It is also instrumental to note that the Court ordered the Plaintiff to deduct any income(s) she received during the month to ascertain the amount of support the Defendant should make. The Court observed that income includes any not only wages and cash payment to Plaintiff, but also property, services, gifts, educational grants, and constructively received income. 

Interestingly, the Court noted rightly that Plaintiff had refused to acknowledge credit payments and other forms of income from the Defendant and other third parties. The Court also expressed its doubts regarding whether Plaintiff would truthfully disclose a new job, receipt of food stamps, gifts, educational grants, or other public support, whose effect would be the reduction of the amount of support she is entitled to from Defendant. 

In conclusion, the Court Ordered that Plaintiff files a Declaration under oath stating the amounts she received since the verdict issued on July 16, 2019. The Court further ordered that Defendant should make the payments monthly after deducting the incomes received by the Plaintiff. 

On or about November 1, 2020, the Plaintiff filed a Declaration. She alleged that in the month of October 2020, she received total income amounting to $ 194 in form of constructively received payments. 

Defendant hereby challenges the said Declaration on the grounds that the Plaintiff failed to disclose total income she received during the said month. She did not account for her other incomes such as free internet, free gas for her car, insurance, free food, and free utilities. 

The Plaintiff is also blameworthy in because she refused to accept payments from the Defendant twice. In the first time, Defendant mailed Plaintiff the payment, which she refused to accept. Consequently, Defendant sent the payment again, which she refused to accept. Interestingly, she proceeded to file an affidavit swearing that she had not received any payment from Defendant.  

LEGAL ARGUMENT

• THE PLAINTIFF SHOULD BE SANCTIONED FOR DISOBEYED THIS COURT’S ORDER

The Fourth Circuit Courts sanction parties who fail to comply with Court Orders. Notably, the Fourth Circuit has previously found that ‘stalling and ignoring the direct orders of the court with impunity’ is ‘misconduct’ that must obviously be deterred. See D’Orazio v. OSD Holdings, Inc., No. 5:16CV11D, 2017 WL 888225, at *2 (E.D.N.C. Mar. 6, 2017) (unpublished); Plant v. Merrifield Town Ctr. Ltd. P’ship, Nos. 1:08CV374(TSE/JFA), 1:08CV566, 2009 WL 6082878, at *6 (E.D. Va. Dec. 23, 2009) (unpublished). 

Further, “[i]n this circuit, bad faith includes willful conduct, where [a party] ‘clearly should have understood his duty to the court’ but nonetheless ‘deliberately disregarded’ it. . . . If the court were to fail to [impose a serious sanction] at this juncture, it would send the wrong message to recalcitrant parties and their counsel: that defiance goes unpunished. Thus, the need to deter this type of behavior is great.” See Rabb v. Amatex Corp., 769 F.2d 996, 1000 (4th Cir. 1985))), adopted in relevant part, 711 F. Supp. 2d 576, 584-88 (E.D. Va. 2010).

In the instant action, the Plaintiff failed to disclose the amount she received as income from various sources. The definition of income for the purpose of the Affidavit of Support not only included wages and cash payment to Plaintiff, but also property, services, gifts, educational grants, and constructively received income. Therefore, Plaintiff, in defiance of the Court Order, failed to account for her other incomes such as free internet, free gas for her car, insurance, free food, and free utilities. 

• THE PLAINTIFF WAIVED DEFENDANT’S PAYMENT OBLIGATIONS FOR THE SAID MONTH OF OCTOBER

Waiver is an intentional relinquishment of a known right. See Nassau Trust Co. v Montrose Concrete Props. Corp., 56 NY2d 175, 164 ]1982]; Springside Land Co., LLC v Board of Mgrs. of Springside Condominium I, 56 AD3d 654 [2d Dept 2008]. 

In the instant action, the Defendant made payments to Plaintiff twice, which payment Plaintiff refused. In the first instance, Defendant sent the payment via First Class Mail, which was returned to Defendant after Plaintiff refused to acknowledge the payment. Defendant attempted to send the payment again, but it was returned to Defendant after Plaintiff refused to accept the payment. Defendant therefore avers that Plaintiff waived her right to receive the payment by her refusal.    

CONCLUSION

In light of the foregoing, Defendant states that Plaintiff disobeyed the said Order by failing to include all incomes she received for the month of October. Plaintiff also waived her right to receive the support payments when she refused to accept the payments twice.. Accordingly, Defendant prays this Honorable Court to enforce Plaintiff’s compliance with the said Court Order, and to issue an Order declaring Plaintiff’s waiver of the support payments for refusing to accept the payments from Defendant. Defendant also prays for any other relief this Court deems just. 

DATED: 

Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], copies of the foregoing document have been sent to the Plaintiff in the following address:

[ENTER PLAINTIFF’S ADDRESSS]

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