Opinion
2:20-cv-13128
07-29-2021
CORNELIA LORENZ, Petitioner, v. BENJAMIN LORENZ, Respondent.
Paul D. Borman, District Judge.
REPORT AND RECOMMENDATION TO DENY PETITIONER'S MOTION TO WAIVE AFFIRMATIVE DEFENSE AND TO PROHIBIT
The undersigned has decided to proceed by a report and recommendation rather than by an opinion and order. In Vogel v. U.S. Office Products Co., 258 F.3d 509, 514-515 (6th Cir. 2001), the Sixth Circuit held that “[i]n determining whether a particular motion is dispositive, this court undertakes functional analysis of the motion's potential effect on litigation.” Based on caselaw from this and other districts, the undersigned is convinced that decision on this motion is best made by way of a report and recommendation. See, e.g., Hill v. Herbert Roofing &Insulation, Inc., No. 13-11228, 2013 WL 7045570, at *1 n.1 (E.D. Mich. Dec. 10, 2013), report and recommendation adopted in part, rejected in part on other grounds, 2014 WL 234217 (E.D. Mich. Jan. 22, 2014) (proceeding by report and recommendation on a motion to strike affirmative defenses and recommending denial as untimely); Jeeper's of Auburn, Inc. v KWJB Enter., L.L.C., No. 1013682, 2011 WL 1899195, at *1-2 (E.D. Mich. Mar. 16, 2011), report and recommendation adopted, 2011 WL 1899531 (E.D. Mich. May 19, 2011) (proceeding by report and recommendation on a motion to strike an affirmative defense and recommending denial of the motion); Specialty Minerals, Inc. v. Pleuss-Staufer AG, 395 F.Supp.2d 109, 111 (S.D.N.Y. 2005) (“motion to strike an affirmative defense is clearly ‘dispositive of a . . . defense of a party' ”); United States v. Davis, 794 F.Supp. 67, 68 (D.R.I. 1992) (“[a]n order striking affirmative defenses is dispositive of those defenses.”).
KIMBERLY G. ALTMAN, United States Magistrate Judge.
THE CHILDREN FROM BEING INTERVIEWED (ECF No. 24) AND TO DENY RESPONDENT'S REQUEST FOR ATTORNEY FEES (ECF No. 29)
Upon review of the parties' papers, the Court deems these matters appropriate for decision without oral argument. See Fed.R.Civ.P. 78(b); E.D. Mich. LR 7.1(f)(2).
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 Cornelia's motion to waive affirmative defense and to prohibit the children from being interviewed (ECF No. 24), and respondent Benjamin Lorenz's request for attorney fees (ECF No. 29). For the reasons that follow, it is RECOMMENDED that Cornelia's motion be DENIED and Benjamin's request for attorney fees be DENIED.
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.
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 as of the filing of the petition. (Id.).
According the parties, there is also a pending divorce and custody proceeding occurring in Michigan, initiated by Benjamin.
III. Analysis
In her motion, Cornelia requests that this Court “deem waived the affirmative defense as to the children's potential objection(s) to be returned to their home state” because Benjamin failed to raise such an affirmative defense in his first responsive pleading or at any other time thereafter. (ECF No. 24, PageID.185). Benjamin responds that he indicated the children wanted to live in the United States in his answer. (ECF No. 29, PageID.307). Cornelia replies that the children's alleged objections to living in Germany were not mentioned or referenced in Benjamin's answer. (ECF No. 30, PageID.310).
“The Hague Convention establishes several affirmative defenses that may be advanced in opposition to a Hague petition.” Sita-Mambwene v. Keeton, No. 4:09CV00913, 2009 WL 2836430, at *4 (E.D. Mo. Aug. 28, 2009). “Article 13 of the Hague Convention provides that a court may consider a child's objection to returning if the child ‘has attained an age and degree of maturity at which it is appropriate to take account of [their] views.' ” Jimenez Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 38932, at *6 (E.D. Mich. Jan. 3, 2020). This affirmative defense is commonly referred to as the “mature child defense.” See, e.g., Sita-Mambwene, at *4.
Federal Rule of Civil Procedure 8(c)(1) provides: “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.” “As a result, failure to timely plead an affirmative defense may result in waiver and the exclusion of the defense from the case.” Leon v. Ruiz, No. MO:19-CV-00293-RCG, 2020 WL 1227312, at *6 (W.D. Tex. Mar. 13, 2020) (citations omitted). “It is well established, however, that failure to raise an affirmative defense by responsive pleading does not always result in waiver.” Moore, Owen, Thomas & Co. v Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993). “A defendant does not waive a defense if it is raised with ‘pragmatically sufficient time' and does not prejudice the plaintiff in its ability to respond.” Leon, at *6 (quoting Rogers v. McDorman, 521 F.3d 381, 386 (5th Cir. 2008)). “A district court has discretion to determine whether the party against whom the defense was raised suffered prejudice or unfair surprise as a result of the delay in asserting the defense.” Id. (citing Levy Gardens Partners 2007, L.P. v. Commonwealth Land Title Ins. Co., 706 F.3d 622, 633 (5th Cir. 2013)).
Here, while Benjamin did not clearly raise the affirmative defense of the mature child in his first responsive pleading (ECF No. 6, PageID.52), he did clearly raise the affirmative defense in his motion to dismiss that was filed on April 1, 2021 (ECF No. 10, PageID.74-78). The section of the motion is titled “Children Object to Living in Germany, ” and cites the relevant potions of the Hague Convention. (ECF No. 10, PageID.74-75). The section also details the alleged specific objections the children have to returning to Germany. (Id., PageID.75-78). Under these circumstances, the undersigned finds that Cornelia has been on notice for at least three months that Benjamin intended to raise the mature child defense in this case. During this period, Cornelia could have had the children evaluated and hired any experts she deemed necessary. Thus, the undersigned is not swayed by her claim of prejudice. Under these circumstances, the defense should not be considered waived. As such, if this report and recommendation is adopted, the undersigned will plan to move forward with interviewing the children in due course as permitted by the Court's policies regarding reopening.
As of this date, the Court is planning to reopen to the public on September 7, 2021, and in person proceedings for September may be scheduled starting in August.
At the end of his response, Benjamin requests attorney fees for having to respond to Cornelia's motion. “It has long been the general rule in the United States that a prevailing party may not ordinarily recover attorneys fees in the absence of a statute or enforceable contract providing for a fee award.” Shimman v. Int'l Union of Operating Engineers, Local 18, 744 F.2d 1226, 1229 (6th Cir. 1984). Benjamin has not pointed to a statute that would permit him to recover attorney fees. Further, his request for attorney fees does not comport with E.D. Mich. LR 54.1.2(b), which provides:
A motion for an award of attorneys' fees shall be supported by a memorandum brief as to the authority of the Court to make such an award, and as to why the movant should be considered the “prevailing party, ” if such is required for the award. The motion shall also be supported by an affidavit of counsel setting out in detail the number of hours spent on each aspect of the case, the rate customarily charged by counsel for such work, the prevailing rate charged in the community for similar services, and any other factors which the Court should consider in making the award. Within 14 days after filing of the motion, the party or parties against whom the award is requested shall respond with any objections thereto and accompanying memorandum setting forth why the award is excessive, unwarranted, or unjust.
Under these circumstances, Benjamin's request for attorney fees should be denied.
IV. Conclusion
For the reasons stated above, it is RECOMMENDED that Cornelia's motion be DENIED and Benjamin's request for attorney fees 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.