UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

____________________________________ ) Leisha Tringali, ) ) Plaintiff ) ) vs. ) ) ) Department of Transitional Assistance, et al., ) ) Defendants ) ____________________________________ ) Civil Action No.: 12-CV-124-PB

MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS DEFENDANTS INTRODUCTION I. Statement of the Case.

Pursuant to Federal Rule Civil Procedure 8(a)(2), the plaintiff submits this memorandum in support of plaintiff‟s response in opposition to motion to dismiss defendant(s). Plaintiff, hereby submits this memorandum of law in opposition to defendant's motion to dismiss. As set forth in more detail below, plaintiff brought its action against the defendant(s) because the defendant(s) has violated the plaintiff‟s due process rights under the Fifth and Fourteenth U.S. Constitution, the federal statute governing the defendant(s), and nearly seven decades of established, unquestioned, and unchallenged U.S. Supreme Court jurisprudence. Because of these violations, and regardless of any ongoing administrative proceedings against the plaintiff, jurisdiction to hear this action is properly before this court. The defendant(s) motion to dismiss is predicated on the argument that this court has no jurisdiction over this lawsuit. The defendant(s) has not yet rendered its final agency decision in

the ongoing administrative enforcement actions against the plaintiff who continues to be harmed by their actions. However, the defendant(s) arguments actually have it backwards - they miss the point that it is the defendant's pursuit of the ongoing administrative enforcement actions that has caused the plaintiff to suffer egregious violations of her constitutional rights. The court's jurisdiction over this lawsuit arises from the very fact that the defendant(s) pursuit of the ongoing administrative actions is unconstitutional and in brazen defiance of the very real and clear statutory and constitutional limits upon its statutory authority. There is a core constitutional requirement that the plaintiff alleged some actual or threatened injury that is fairly traceable to the defendants and can be remedied by an order directed against the defendant(s). At issue in this case is the defendant(s) pursuit of an administrative enforcement actions against the plaintiff which violated her due process rights under the Fifth and Fourteenth Amendment rights under the U.S. Constitution. The defendant(s) claim plaintiff‟s suit is barred by the Eleventh Amendment to the United States Constitution declaring they are not “persons” under the remedial statue of plaintiff‟s claim, 42 U.S.C § 1983. The Eleventh Amendment does not bar Plaintiffs‟ claims because defendants have waived their immunity by accepting federal funds ie; Title IV Part A and Title IV Part D. The relevant question, then, is whether Massachusetts has waived its immunity.

II. Statement of the Facts. In this case, the plaintiff alleges distinct injuries: Plaintiff is aggrieved by the defendant's final determination regarding actions taken in collecting and disbursing child support. Complaint at ¶ 14 Procedural due process demands that a party affected by government action be given notice and an opportunity to be heard before being deprived of a property interest. id ¶ 15 In this case, the DOR/CSE failed to afford either of these aspects of due process to plaintiff when deciding the amount of her child support obligation. id ¶ 16 Plaintiff alleges she was deprived of a full and fair opportunity to be heard. id ¶ 17

The DOR/CSE filed a complaint for modification of Judgment dated August 29, 1996 on behalf of the DTA against Leisha Eshbach under docket number 96D 1305. id ¶ 29 On or about April 18, 2002 the DTA motioned for temporary orders for support against Leisha Eshbach. The DTA further requested for financial statement against Leisha Eshbach. id ¶ 33 The DOR/CSE without the express authorization of the plaintiff transferred her personal identifying information ( Social Security Number ) to obtain child support payments under a synthetic identity created by the DTA. id ¶ 43. The DOR levied $475.98 from Citizens Bank of Massachusetts from Leisha Tringali, the plaintiff‟s account. Account number 110998-XXX-X. id ¶ 44. The DOR intercepted an insurance claim payment from the plaintiff in the amount of $1327.50. id ¶ 44. The DOR levied $1906.00 from Citizens Bank of Massachusetts from the plaintiff„s account. Account Number 110998-XXX-X. id ¶ 45. The DOR intercepted an insurance claim settlement payment from the plaintiff in the amount of $10,000.00. id ¶ 46. The plaintiff requested an administrative review with the DOR/CSE and was never given proper notice of the outcome. id ¶ 47. The DOR/CSE denied the ability to conduct an administrative review as they could not modify a court order. id ¶ 48. The plaintiff argues that it was the responsibility of DOR/CSE to file for a modification as the plaintiff continues to declare any order that names Leisha Eshbach can not be enforceable upon plaintiff without violating her due process rights. id ¶ 49 Plaintiff was denied the renewal of her license / operating privileges. The New Hampshire Registry of Motor Vehicles declared that plaintiff‟s right to operate was under suspension by the Commonwealth of Massachusetts in a National Database Registry. id ¶ 55 Plaintiff, was never afforded a hearing for a child support order. id ¶ 55A Plaintiff was never afforded a hearing regarding the suspension of her driver‟s license. id ¶ 55 B Plaintiff was not given notification that her driving privilege‟s had been suspended. id ¶ 55 C Plaintiff was not given notification that she would not be able to renew her driver license. Complaint at ¶ 55 D

Considering that the DOR/CSE and Plaintiff had two separate opinions on what might have been owed and/ or who might have owed it, that without doubt constituted a controversy and for the Commonwealth not to provide a jury trial violated plaintiff‟s clearly established constitutional right. id ¶ 75 For the RMV to suspend the plaintiff‟s driver license or any other license by a request from the DOR/CSE or any other third party with no valid court order would violate plaintiff‟s due process under the Fifth and Fourteenth Amendment of the United State Constitution. id ¶ 76 The plaintiff mailed a certified demand letter to Doug Comfort. The plaintiff raised the issue of due process declaring proper service to her has never been served or ordered. id ¶ 84 The plaintiff‟s demands were not met. id ¶ 7. Doug Comfort knowingly and willingly allowed the plaintiff to continue to be harmed by allowing a pattern and practice of the ongoing criminal administrative enforcement actions against the Plaintiff without providing the plaintiff a remedy to the ongoing administrative actions. In the absence of binding precedent obliging it to do so, the Court declines to adopt that doctrine. See Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (individual defendants' "status as employees does not somehow insulate them from jurisdiction" for their contacts with the forum state)

III.

Standard for Dismissal Per Rule 12(b)(6).

A court may dismiss a complaint pursuant to Fed. R. Civ. P. 12(b)(6) only if, accepting all well pleaded facts as true, plaintiff is not entitled to relief. All reasonable inferences from plaintiffs allegations must be accepted as true and viewed in the light most favorable to the non-moving party. The court may not dismiss a complaint unless plaintiff can prove no set of facts that would entitle him to relief. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. A court may dismiss a complaint pursuant to Rule 12(b)(6) "only if, accepting all well pleaded facts as true, the plaintiff is not entitled to relief." Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986). Additionally, all reasonable inferences from plaintiffs allegations "must be accepted as true and viewed in the light most favorable to the non-moving party." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). This Court may not dismiss a complaint unless plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 Us. 41, 45-46, 2 L. Ed. 2d 80, 78 S.Ct. 99 (1957).

"The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."Scheuer v. Rhodes, 416 Us. 232, 236, 40L. Ed. 2d 90,94 S. Ct. 1683 (1974).

ARGUMENT I. Waiver of Immunity is Not Absolute

A. The Commonwealth of Massachusetts has made itself accountable for suit in Federal Court. The Commonwealth of Massachusetts, by virtue of Articles V and XI of the Massachusetts Declaration of Rights, has “made itself accountable” for suit in Federal Court, precluding immunity under the Eleventh Amendment of the United States Constitution.id. 5

Article V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them. Article XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws. B. The Eleventh Amendment does not bar plaintiffs‟ claims because defendants have waived their immunity by accepting federal funds ie; Title IV Part A and Title IV Part D. The relevant question, then, is whether Massachusetts has waived its immunity. In determining whether an agency is entitled to Eleventh Amendment immunity, the courts consider various factors, including whether payment of a judgment resulting from the suit would come from the state treasury, the status of the agency under state law, and the agency‟s degree of autonomy. The Eleventh Amendment does not, however, immunize local governments from private suits. There are three ways that states waive their immunity: (1) by state legislation explicitly waiving immunity from suit; (2) by accepting federal funds that have been provided on the condition that sovereign immunity is waived; and (3) by removing state court litigation to federal court.
Congress has enacted a clear statement that accepting federal funds would constitute a waiver of Eleventh Amendment immunity.

Laws that waive immunity based on the acceptance of federal funds have a wide applicability. Because most state agencies receive some federal funds, it is generally not difficult to establish the state's acceptance of federal assistance. The Department of Justice explained to Congress while the legislation was under consideration, “[t]o the extent that the proposed amendment is grounded on congressional spending powers, [it] makes it clear to [S]tates that their receipt of Federal funds constitutes a waiver of their [E]leventh [A]mendment immunity.” 132 Cong. Rec. 28,624 (1986). Defendant is the duly authorized child support enforcement agency within the Commonwealth designated under Chapter 119A of the General Laws pursuant to Title IV Part D of the Social Security Act. Complaint at ¶ 13 The structure of each State's Title IV-D agency, like the services it provides, must conform to federal guidelines. For example, States must create separate units to administer the plan, §654(3), and to disburse collected funds, §654(27), each of which must be staffed at levels set by the Secretary, 45 CFR §303.20 (1995). If a State delegates its disbursement function to local governments, it must reward the most efficient local agencies with a share of federal incentive payments. 42 U.S.C.A. §654(22) (Nov.1996 Supp.). To maintain detailed records of all pending cases, as well as to generate the various reports required by federal authorities, States must set up computer systems that meet numerous federal specifications. 42 U.S.C.A. §654a. Finally, in addition to setting up this administrative framework, each participating State must enact laws designed to streamline paternity and child support actions. 42 U.S.C.A. §§654(20), 666 The jurisdictional rules are set out in Part A of Article 2 of UIFSA, Sections 201 and 202. Section 201 establishes UIFSA's bases for jurisdiction over a nonresident, i.e., long-arm jurisdiction, by providing that a state may exercise jurisdiction over an individual if (1) the individual has been properly served in the state. Plaintiff is aggrieved by the defendant's final determination regarding actions taken in collecting and disbursing child support. Complaint at ¶ 14 Procedural due process demands that a party affected by government action be given notice and an opportunity to be heard before being deprived of a property interest. id ¶ 15 In this case, the DOR/CSE failed to afford either of these aspects of due process to plaintiff when deciding the amount of her child support obligation. id ¶ 16 Plaintiff alleges she was deprived of a full and fair opportunity to be heard. id ¶ 17

Defendant is the duly authorized Department of Transitional Assistance, an agency within the Commonwealth designated under to Title IV Part A. States are not required to participate in the AFDC program, but if they choose to do so, they must operate a program which meets the statutory requirements in 42 U.S.C. § 602, as well as the provisions of detailed federal regulations promulgated by the Secretary. AFDC, also known as Title IV-A of the Social Security Act, is a federal-state cooperative effort administered by the states. Jones v. Sullivan, 1998 For the RMV to suspend the plaintiff‟s driver license or any other license by a request from the DOR/CSE or any other third party with no valid court order would violate plaintiff‟s due process under the Fifth and Fourteenth Amendment of the United State Constitution. id ¶ 76 Plaintiff was denied the renewal of her license / operating privileges. The New Hampshire Registry of Motor Vehicles declared that plaintiff‟s right to operate was under suspension by the Commonwealth of Massachusetts in a National Database Registry. id ¶ 55 Transit systems - Lizzi v. Alexander, 255 F.3d 128, 132 (4th Cir. 2001) (WMATA is an arm of the state); Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343 (10th Cir. 1997) (not an arm of the state); Access Living Metro v. Chicago Transit Authority, 2001 WL 818789 (N.D. Ill. Mar 12, 2001) (not an arm of the state). Leaving to one side waivers that occur by reason of a state's participation in federal programs that require a surrender of sovereign immunity, see, e.g., Petty v. Tenn.-Mo. Bridge Comm'n, 359 U.S. 275, 280-82 (1959), a state may waive immunity in one of two ways. First, a state may waive its immunity expressly; that is, by unequivocally expressing its consent to suit. Sossamon, 131 S. Ct. at 1658. Second, a state may waive its immunity impliedly; that is, by engaging in affirmative conduct during litigation sufficient to evince consent to suit. See New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004). The dispute in this case centers on waiver by conduct. However, "[a] State's immunity from suit is not absolute." Lombardo v. Pennsylvania, 540 F.3d 190, 195 (3d Cir. 2008). "[T]here are only three narrowly circumscribed exceptions to Eleventh Amendment immunity: (1) abrogation by Act of Congress, (2) waiver by state consent to suit; and (3) suits against individual state officials for prospective relief to remedy an ongoing violation of federal law." M.A. ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. N.J. 2003) (citing MCI Telecomms. Corp. v. Bell Atlantic-Pennsylvania Serv., 271 F.3d 491, 503 (3d Cir. 2001), cert. denied, 537 U.S. 941 (2002)). Plaintiff does not argue that defendants are without entitlement to immunity based on Congressional abrogation. Indeed, it is "black-letter law that while Congress may abrogate a

state's sovereign immunity under certain circumstances, it did not do so when enacting 42 U.S.C. § 1983." In Fitzpatrick v. Bitzer (1976), however, the Court made an exception to that usual rule. Fitzpatrick held that Congress could use its power under section 5 of the Fourteenth Amendment — which allows Congress to enforce the substantive terms of the Fourteenth Amendment, including the Equal Protection Clause, by positive legislation — to override state sovereign immunity. Fitzpatrick v. Bitzer 427 US 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 - Supreme Court, 1976 C. Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States. “Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States.” See McKay v. Dallas Independent School District, 2009 “Section 1983 provides a private right of action against any person who, acting under the color of state or territorial law, abridges "rights, privileges, or immunities secured by the Constitution and laws" of the United States.” See Pennsylvania Pharmacists Ass'n v. Houstoun, 283 F. 3d 531 - Court of Appeals, 3rd Circuit, 2002 "[T] he § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional rights."- See Brewer v. Cantrell, 622 F. Supp. 1320 - Dist. Court, WD Virginia, 1985 " `We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy' for the deprivation of a federally secured right. "- See Doe By Fein v. District of Columbia, 93 F. 3d 861 - Court of Appeals, Dist. of Columbia Circuit, 1996 In a § 1983 action, defendant has the burden of demonstrating "by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement. `We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy' for the deprivation of a federally secured right. "- See BH v. Johnson, 715 F. Supp. 1387 - Dist. Court, ND Illinois, 1989 Plaintiff claims that her rights under the due process clause were violated by failing to give her notice or an opportunity to be heard. Plaintiff had alleged sufficient facts to state a claim that without a hearing, the defendant(s) had deprived of a liberty interest without due process.

II.

Due Process Clause Requires Notice and an Opportunity to be Heard

There the Supreme Court Said: The Due process Claus entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistake deprivations and the promotion of participation and dialogue by affected individual in the decision making process. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, “generating the feeling, so important to a popular government, that justice has been done,” by ensuring that no person will be deprive of his interested in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. PORTER v. SINGLETARY 49 F.3rd 1483 (11th Cir. 1995) Quoting Marshall v. Jerrico, Inc. 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed 2nd 182 (1980). As the Supreme Court so aptly wrote: "The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Those "constitutionally adequate procedures" require notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950); see also Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 1344, 99 L.Ed.2d 565 (1988). Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 1052*1052 339 U.S. at 314, 70 S.Ct. at 657. The defendants, violated plaintiff‟s protected due process rights by a pattern and practice of criminally editing, falsifying, and manipulating a temporary order child support order by creating a synthetic identity then denied plaintiff the ability to conduct an administrative review to deprive her of any meaningful remedy. The defendants, in conspiracy with each other, deprived plaintiff of due process and equal protection of the law by denying her notice, an opportunity to be heard and illegally seizing her property. The plaintiff claims procedural due process demands that a party affected by government action be given notice and an opportunity to be heard before being deprived of a property interest. Complaint at ¶ 15 Plaintiff declares any order that names Leisha Eshbach can not be enforceable upon plaintiff without violating her due process rights.

III.

Facts Are Unavailable

The Plaintiff cannot produce admissible evidence to support the fact without having discovery. The plaintiff made the following demands. id ¶ 86 A copy of the signed child support judgment used by the Department of Revenue against Leisha Tringali. id ¶ 86 (A) A copy of the signed order for the Financial Statement against Leisha Tringali. id ¶ 86 (B) An accurate accounting of all moneys taken from her by use of her Social Security Number *****-0125. id ¶ 86 (C) Plaintiff, gave notice in her complaint that she intended to rely upon such other and further evidence as may become available or apparent during trial in this action, and thereby reserved the right to amend her Complaint and to assert any such evidence by appropriate motion. The defendant(s) deny plaintiff‟s claims but do not offer any facts of their own. To dispose of claims with insufficient factual basis (where the movant must submit additional facts to demonstrate the factual weakness in the plaintiff's case), a Rule 56 motion for summary judgment is used. Rule 8(b) states that the defendant's answer must admit or deny every element of the plaintiff's claim.

IV.

The Judicial Power of This Court Has Been Properly Invoked.

In the course of a generation, the Court has transformed the test for qualified immunity from one that turns on the official‟s subjective good faith to an objective test that focuses on the clarity of the constitutional right at issue. One can see the conclusion of this transformative series of decisions in the Court‟s description of the issue in Iqbal: did the plaintiff plead sufficient factual matter that, if taken as true, “states a claim that [government officials] deprived him of his clearly established constitutional rights.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “ the Court has discretion with respect to any implied cause of action that arises from equitable powers and the Supreme Court's instruction that a "remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee."

- in COMMITTEE ON JUD., US HOUSE OF REPRES. v. Miers, 558 F. Supp. 2d 53 - Dist. Court, Dist. of Columbia, 2008

V.

Subject Matter Jurisdiction Is Properly Vested in This Court.

Federal Rule Civil Procedure 8(a) sets out the plaintiff's requirements for a claim: a "short and plain statement" of jurisdiction, a "short and plain statement" of the claim, and a demand for judgment. It also allows relief in the alternative, so the plaintiff does not have to pre-guess the remedy most likely to be accepted by the court. The United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] `must be held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). The court is obliged to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "Specific facts are not necessary; the statement need only `give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, ___ U.S. ___, ___, 127 S. Ct. 2197, 2200 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at ___, 127 S. Ct. at 1964). Plaintiff is a prose litigant with no legal education to assist in drafting her pleading and pleads with this court to hold her pleadings with less stringent standards and construe her filings liberally.

CONCLUSION For the reasons set forth above, the motion to dismiss should be denied.
Dated: August 24, 2012 Respectfully submitted,

________________________ Leisha Tringali, Prose 11 Indian Valley Road Pelham, New Hampshire 03076 Tel: (603) 893-9333

CERTIFICATE OF SERVICE I hereby certify that on this the 24th day of August, 2012, I filed the foregoing Memorandum of Law in Opposition to Defendant's Motion to Dismiss with the Clerk of the Court via certified mail through the United States Post Office, to the following: United States District Court, Office of the Clerk, 55 Pleasant Street, Room 110, Concord, New Hampshire 03301-3941
I, Leisha Tringali, hereby certify that a true copy of the above complaint was mailed by first class mail through the United States Post Office to the following Defendants and the Massachusetts Attorney General at the addresses listed below. 1. Daniel J. Curley for The Department of Transitional Assistance has its principal place of business at 600 Washington Street, Boston, MA 02111 2. Amy Pitter for The DOR / Child Support Enforcement agency has its principal place of business at 100 Cambridge, Boston, Massachusetts 02114. 3. The defendant Doug Comfort principal place of business is located at 100 Sylvan Road, 100 Trade Center, Woburn, Massachusetts 01801 4. Rachel Kaprielian for The Registry of Motor Vehicles of the Department of Transportation has its principal place of business at 10 Park Plaza, Suite 4160 Boston, MA 02116 5. Attorney James A. Sweeney, Deputy Division Chief, Government Bureau/Trial Division One Ashburton Place, Boston, Massachusetts 02108 Date: August 24, 2012 _________________________________ Leisha D. Tringali ( Pro Se )