Opinion
2:20-cv-13128
05-11-2021
CORNELIA LORENZ, Petitioner, v. BENJAMIN LORENZ, Respondent.
Paul D. Borman District Judge
REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS (ECF NO. 10)
Upon review of the parties' papers, the Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
KIMBERLY G. ALTMAN UNITED STATES MAGISTRATE JUDGE
I. Introduction
This case originated when petitioner, Cornelia Lorenz, filed a petition for the return of children under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), which the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq., has implemented into United States law. (ECF No. 1). Under 28 U.S.C. § 636(b)(1), all pretrial matters were referred to the undersigned. (ECF No. 7). Before the Court is respondent, Benjamin Lorenz's motion to dismiss the petition. For the reasons that follow, the undersigned recommends that Benjamin's motion be DENIED.
As will be explained, although styled as a motion to dismiss, Benjamin also requests that the Court grant him summary judgment.
Because petitioner and respondent share the same last name, the undersigned will refer to them by their first names.
II. Background
The following facts are gleaned from the petition filed by Cornelia.
Benjamin and Cornelia share two minor children, Timothy (born June 10, 2009) and Noah (born January 11, 2011). (ECF No. 1, PageID.2). Cornelia alleges that the children were wrongfully removed from Germany to the United States by Benjamin on July 21, 2020. (Id., PageID.2-3, 5). She further alleges that, at the time of their removal, the children were habitual residents of Germany within the meaning of the Hague Convention. (Id., PageID.3).
From the time of their respective births in 2009 and 2011 until January 5, 2014, the children lived with Cornelia and Benjamin in Plymouth, Michigan. (Id., PageID.4). The family then moved to Bergenfield, Germany on January 6, 2014. (Id.) Noah attended preschool through third grade in Germany, while Timothy attended preschool through fifth grade in Germany. (Id.) The children visited the United States multiple times during the period that they lived in Germany. (Id., PageID.5).
The parties agreed that Benjamin could take the children to visit relatives in the United States from July 21, 2020, until September 5, 2020. (Id.). However, Benjamin never returned to Germany with the children despite Cornelia's demands that he do so. (Id., PageID.5-6)
On September 15, 2020, Cornelia filed an application with the Hague Convention Central Authority in Germany seeking the return of the children. (Id., PageID.6). On October 26, 2020, Cornelia sought a temporary custody order from a German Court. (Id., PageID.5). The German court has yet to issue a ruling. (Id.).
According the parties, there is also a pending divorce and custody proceeding occurring in Michigan, initiated by Benjamin.
III. Analysis
A. Service of Process
Benjamin alleges that he was improperly served under Fed.R.Civ.P. 4(e) requiring dismissal of the case under Fed.R.Civ.P. 12(b)(5). (ECF No. 10, PageID.70-71). Dismissal may be had under Fed.R.Civ.P. 12(b)(5) for improper service of process. Fed.R.Civ.P. 4(e) provides that an individual may be served in the following ways:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
“Where service is ineffective, a court has discretion to either dismiss the action or quash service and retain the case.” Young's Trading Co. v. Fancy Imp., Inc., 222 F.R.D. 341, 342-43 (W.D. Tenn. 2004). Courts construe provisions of Rule 4 liberally in order to uphold service, requiring only ‘substantial compliance.' ” Meyer v. Timothy E. Baxter & Associates, P.C., No. 18-10058, 2018 WL 1858182, *2 (E.D. Mich. Apr. 18, 2018) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). “In exercising its discretion under Rule 4, a court may consider whether the plaintiff's error resulted from innocent mistake or inexcusable neglect.” Meyer, at *2. Dismissal may not be warranted “in light of plaintiff's good faith effort to effect proper service of process, plaintiff's substantial compliance with the service rules, and defendant's inability to show lack of notice or prejudice other than the inherent prejudice in having to defend this lawsuit.” Id.
Benjamin alleges that he was improperly served because the papers were left on his doorstop, rather than being handed to him. (Id., PageID.70-71). This assertion, however, is contradicted by the record, which contains a proof of service indicating that an individual named Robert Trolian personally served the papers on Benjamin on December 12, 2020. (ECF No. 3, PageID.17).
“Because the Court is resolving this matter on the written record, it ‘will not consider facts proffered by the defendant that conflict with those offered by the plaintiff, and will construe the facts in the light most favorable to the nonmoving party.' ” Rojek v. Catholic Charities, Inc., No. 08-14492, 2009 WL 3834013, at *3 (E.D. Mich. Nov. 16, 2009) (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002)). Accordingly, construing the facts in the light most favorable to Cornelia supported by the record leads to the conclusion that Benjamin was properly, and personally, served. Furthermore, Cornelia made a good faith effort to effect proper service of process, she substantially complied with the service rules, and Benjamin cannot show either lack of notice or prejudice. Under these circumstances, Benjamin was on notice of this case and should be deemed served. Dismissal is not warranted. See Meyer, at *2-3 (citations omitted).
Furthermore, “dismissal is not invariably required where service is ineffective- under such circumstances a court has discretion to either dismiss the action or quash service but retain the case for proper service later.” Rojek, at *3. Accordingly, even if it was determined that service was ineffective, the undersigned would recommend giving Cornelia a sufficient amount of time to effect proper service instead of dismissing the petition.
B. Failure to State a Claim/No Genuine Issue of Material Fact
It appears that Benjamin is concurrently seeking relief under both Fed.R.Civ.P. 12(b)(6) and 56. To the extent that Benjamin's motion is premised on the notion that Cornelia has failed to state a claim in her petition, it fails. To state a claim for wrongful removal of children under the Hague Convention a petitioner must establish the following three elements: “1) prior to removal or wrongful retention, the child was habitually resident in a foreign country; 2) the removal or retention was in breach of custody rights under the foreign country's law; and 3) the petitioner was exercising custody rights at the time of the removal or wrongful retention.” Blancarte v. Santamaria, No. 19-13189, 2020 WL 38932, at *2 (E.D. Mich. Jan. 3, 2020). Cornelia's petition alleges facts that support each of these three elements.
First, “[f]or the Hague Convention to apply, the abducted child must have been ‘habitually resident in a Contracting State immediately before any breach of custody or access rights.' ” Id. (quoting Hague Convention, Article 4). Recently, the Supreme Court considered what it means to be “habitually resident” in a contracting state. The Supreme Court stated:
The Hague Convention does not define the term “habitual residence.” A child “resides” where she lives. See Black's Law Dictionary 1176 (5th ed. 1979). Her residence in a particular country can be deemed “habitual, ” however, only when her residence there is more than transitory. “Habitual” implies “[c]ustomary, usual, of the nature of a habit.” Id., at 640.Monasky v Taglieri, 140 S.Ct. 719, 726 (2020). Essentially, “[t]he place where a child is at home, at the time of removal or retention, ranks as the child's habitual residence.” Id. at 726-727. The Supreme Court also recognized that “the term ‘habitual' does suggest a fact-sensitive inquiry, not a categorical one.” Id. at 726.
Here, the petition states that the children lived in Germany from January 6, 2014, until July 21, 2020. The children also attended all of their schooling in Germany. Accordingly, based on the facts alleged in the petition, the children appear to be habitually resident in Germany.
As to the second and third elements, “Article 3 of the Hague Convention defines wrongful removal as removal that is in breach of custody rights under the law of the country in which the child was habitually resident.” Blancarte, at *2. “Rights of custody are defined in Article 5(a) as ‘rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.' ” Id. (quoting Hague Convention, Article 5(a)). “German law gives both parents equal de jure custody of the child, German Civil Code 1626(1), and, with a few exceptions, this de jure custody continues until a competent court says otherwise.” Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996). Thus, Cornelia has de jure custody of both children under German law as a competent court has not ruled otherwise, and her right to de jure custody was allegedly violated when Benjamin kept the children in the United States without her permission.
While the Hague Convention does not define what it means for a parent to be exercising his or her custody rights, the Sixth Circuit has held that a parent exercises his or her rights “whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Id. at 1065. Cornelia's actions in filing the petition and seeking the return of the children demonstrates that she is keeping, or in the least, is seeking to keep in contact with her children. Thus, Cornelia is exercising her custody rights.
Accordingly, Cornelia's petition makes out a prima facia case for wrongful removal under the Hague Convention. Thus, Benjamin's argument that Cornelia's petition fails to state a claim upon which relief can be granted fails.
It also appears that Benjamin is seeking summary judgment. Notably, the arguments presented by Benjamin are bolstered by a multitude of factual assertions not contained in the pleadings. For example, Benjamin's motion relies in part on the purported reasons that the children object to living in Germany, yet the pleadings did not contain this information. (ECF No. 10, PageID.74-78). Benjamin has also signed the motion, in an apparent attempt to turn it into the equivalent of an affidavit. The entirety of the motion contains statements concerning Benjamin, the relationship between Benjamin and Cornelia, and Cornelia's conduct that were not included in the pleadings. In order to properly consider Benjamin's arguments, the undersigned must consider facts contained outside of the pleadings and would have to treat the motion as a motion for summary judgment under Fed.R.Civ.P. 56. Ashh, Inc. v. All About It, LLC, 475 F.Supp.3d 676, 678 (E.D. Mich. 2020) (“In addition, if a court considers matters outside of the pleadings, the court must convert the motion into one for summary judgment under Rule 56.”).
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004).
“The moving party has the initial burden of proving that no genuine issue of material fact exists. . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56(e)(2) (providing that if a party “fails to properly address another party's assertion of fact, ” the court may “consider the fact undisputed for purposes of the motion”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.' ” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Here, Benjamin's request for summary judgment is premature. “A court may rule on a motion for summary judgment only after the nonmoving party has had ‘adequate time for discovery.' ” E. Kentucky Cardiothoracic Surgery, P.S.C. v. Ashland Hosp. Corp., 119 Fed.Appx. 715, 717 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). As Cornelia points out in her response, she has not yet had the opportunity to conduct discovery. Cornelia notes that she “has had no opportunity to test the veracity of [Benjamin's] sworn statements because [s]he has been prohibited from conducting discovery under the Federal Rules of Civil Procedure.” (ECF No. 14, PageID.123). And as noted above, the analytical framework for resolving a dispute under the Hague Convention requires detailed factual findings, particularly as to the minor children's habitual residence. Under these circumstances, Benjamin's request for summary judgment is not ripe for review on the record as it stands.
Finally, Benjamin argues that Cornelia consented to the children remaining indefinitely in the United States and accordingly that the case must be dismissed. In support, Benjamin relies on a magistrate's report and recommendation from the Western District of Texas, Leon v. Ruiz, No. MO:19-CV-00293-RCG, 2020 WL 1227312 (W.D. Tex. March 13, 2020). Critically, however, Leon was not a report and recommendation on a motion to dismiss, it was a report and recommendation following a bench trial where the magistrate judge heard testimony and rendered detailed findings of fact and conclusions of law. Id., at *1. A consent defense is an affirmative defense which, if established by a preponderance of the evidence, can defeat what would otherwise be a successful petition for return of a child. See id., at *7. Thus, Leon does not support considering the merits of Benjamin's consent defense at this time.
On July 7, 2020, Cornelia signed a “Consent for children travelling with their father” letter that purports to give a flexible return date for Benjamin to return the children to Germany. (ECF No. 6-1, PageID.54).
In Willard v. Willard, No. 17-cv-11645, 2017 WL 3278745, *3-*5 (E.D. Mich. Aug. 2, 2017), the court considered whether it could dismiss a Hague Convention case for the return of children on a motion to dismiss based on a claim that the petitioner waived his rights under the Hague Convention. The court determined that it could not in the absence of an evidentiary hearing. Id., at *5. The court noted, “Respondent has not cited a single case-let alone binding precedent-where the district court dismissed a Hague Convention claim based on waiver at the motion to dismiss stage.” Id.
In light of the above, the undersigned concludes that it would not only be premature, but inappropriate, for the Court to consider the merits of the summary judgment arguments raised in Benjamin's motion at this stage in the case. As such, to the extent Benjamin seeks summary judgment, his motion should be denied.
IV. Conclusion
For the reasons stated above, the undersigned recommends that Benjamin's motion be DENIED.
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation. Any objections must be filed within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 144 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Under Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1, ” and “Objection No. 2, ” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1, ” “Response to Objection No. 2, ” etc. If the court determines that any objections are without merit, it may rule without awaiting the response.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 11, 2021.
s/Marie E. Verlinde MARIE E. VERLINDE Case Manager