Opinion
2:20-cv-13128
03-16-2022
CORNELIA LORENZ, Petitioner, v. BENJAMIN LORENZ, Respondent.
District Judge Paul D. Borman
REPORT AND RECOMMENDATION ON MOTION TO DISMISS (ECF NO. 45)
Upon review of the parties' papers, the undersigned deems these matters 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 is a case under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), which the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq., has implemented into United States law. Petitioner Cornelia Lorenz filed the petition against Respondent Benjamin Lorenz, seeking the return of their two minor children to Germany. (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 voluntarily dismiss the petition with prejudice on the grounds that because the children have been returned to Germany, this Court can no longer afford any relief. In other words, she says the petition is moot. (ECF No. 45). For the reasons that follow, it is RECOMMENDED that Cornelia's motion be GRANTED and the petition DISMISSED WITH PREJUDICE.
Because Petitioner and Respondent share the same last name, the undersigned will refer to them by their first names.
II. Background
A. Factual Background
As the undersigned has previously noted:
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).
B. Procedural History
The parties have actively litigated in this Court while also litigating related cases in both Germany and state court here in Michigan. What follows is a brief overview of the relevant procedural history which is necessary to understand the nature of Cornelia's motion.
On November 25, 2020, Cornelia filed a petition in this Court (ECF No. 1). Benjamin answered the petition on December 21, 2020 (ECF No. 6). On February 3, 2021, all pretrial matters were referred to the undersigned. (ECF No. 7). The undersigned held a telephonic status conference on February 5, 2021, during which counsel informed the undersigned that they would shortly be undergoing mediation in an attempt to resolve the case. The Court issued an order stating, inter alia, if the mediation was unsuccessful, Benjamin was directed to file a motion to dismiss within 21 days after the end of mediation. (ECF No. 9, PageID.58).
Mediation was unsuccessful and Benjamin filed a motion to dismiss on April 1, 2021. (ECF No. 10). Cornelia filed a response on April 22, 2021 (ECF No. 14), and Benjamin filed a reply on May 10, 2021 (ECF No. 15). One day after the reply was filed, on May 11, 2021, the undersigned issued a report and recommendation (R&R), recommending that Benjamin's motion to dismiss be denied. (ECF No. 16). No objections were filed, and the R&R was adopted on June 2, 2021. (ECF No. 17). The undersigned then held a telephonic status conference with the parties on June 4, 2021, and scheduled an evidentiary hearing for August 11, 2021. (ECF No. 19).
Before the evidentiary hearing could be held, Benjamin filed an affidavit which was construed as a motion to proceed pro se. (ECF No. 20). The undersigned held a hearing and thoroughly examined Benjamin regarding his decision to proceed pro se at a June 23, 2021 video conference. (ECF No. 22). An order granting the motion was entered on June 23, 2021. (ECF No. 23).
On July 12, 2021, Cornelia filed a motion to waive affirmative defense and to prohibit the children from being interviewed. (ECF No. 26). New counsel entered an appearance for Benjamin on July 17, 2021 (ECF No. 28), and a response to Cornelia's motion was filed on July 26, 2021 (ECF No. 29). Subsequently, Cornelia filed a reply on July 27, 2021. (ECF No. 30). Two days after the reply was filed, on July 29, 2021, the undersigned issued an R&R recommending that the motion be denied. (ECF No. 32). The undersigned then held a telephonic status conference on August 5, 2021, to discuss postponing the evidentiary hearing in light of the pending R&R. Counsel agreed to a postponement and the evidentiary hearing was rescheduled for September 15, 2021. Meanwhile, the R&R on Cornelia's motion to waive affirmative defense and to prohibit the children from being interviewed was adopted without objections on August 13, 2021. (ECF No. 36).
On August 11, 2021, Cornelia filed a motion requesting a psychological evaluation of the children. (ECF No. 35). On August 18, 2021, Benjamin responded to Cornelia's motion for a psychological evaluation of the children (ECF No. 37) to which Cornelia replied on August 25, 2021 (ECF No. 38). The undersigned held a telephonic status conference on September 10, 2021, to discuss another postponement of the evidentiary hearing in light of the pending motion. Counsel agreed to a postponement and the evidentiary hearing was rescheduled for November 3, 2021. (ECF No. 40). On October 1, 2021, the undersigned entered an order denying Cornelia's motion for a psychological evaluation of the children. (ECF No. 42).
On October 25, 2021, the undersigned held a telephonic status conference at which both counsel requested a stay of the proceedings in this Court. (ECF No. 43). Counsel advised the undersigned that they were awaiting a state court order regarding custody of the children which was anticipated to be entered shortly. (ECF No. 43, PageID.442-443). The undersigned entered an order staying proceedings for 45 days. (ECF No. 43).
On December 16, 2021, Wayne County Circuit Court Judge Charlene M. Elder issued an order directing Benjamin to bring the children to court so Cornelia could return to Germany with the children in accordance with a German court order awarding Cornelia custody of the children. (ECF No. 48-3; ECF No. 49-5).
On January 5, 2022, Cornelia filed the instant motion to dismiss the petition. (ECF No. 45). Cornelia says that the petition is now moot because the children had been returned to Germany in accordance with the state court's ruling. (ECF No. 45). Benjamin, now represented by his third attorney, responded to this motion on January 21, 2022 (ECF No. 48), and Cornelia replied on January 28, 2022 (ECF No. 49). Both parties confirm that the children are now with Cornelia in Germany.
III. Analysis
A. Legal Standard
The Federal Rules of Civil Procedure state that an action can be voluntarily dismissed by court order. Fed.R.Civ.P. 41(a)(2) provides:
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over
the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.“Whether to grant such a dismissal is within the sound discretion of the district court.” Crenshaw v. Portfolio Recovery Associates, LLC, 433 F.Supp.3d 1057, 1060 (W.D. Ky. Jan. 9, 2020) (citing Banque de Depots v. Nat'l Bank of Detroit, 491 F.2d 753, 757 (6th Cir. 1974)). “[I]t is an abuse of discretion for a [c]ourt to refuse to grant such a dismissal with prejudice.” Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, Inc., 345 F.Supp.2d 836, 841 (M.D. Tenn. 2004) (citing Smoot v. Fox, 340 F.2d 301, 302-03 (6th Cir. 1964)). Nevertheless, Rule 41(a)(2) authorizes courts to impose “terms that the court considers proper” when granting a plaintiff's motion to voluntarily dismiss. Fed.R.Civ.P. 41(a)(2). For instance, courts have said that “[t]he district court should not approve voluntary dismissal if the defendant will suffer ‘plain legal prejudice' as a result of a dismissal without prejudice.” Crenshaw, 433 F.Supp.3d at 1060 (quoting Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994)). “When assessing plain legal prejudice, the court should consider factors such as: (1) the defendant's effort and litigation expenses, (2) excessive delay and lack of diligence on the part of plaintiff, (3) insufficient explanation of the need for dismissal, and (4) whether a motion for summary judgment has been filed by defendant.” Crenshaw, 433 F.Supp.3d at 1060 (citing Grover, 33 F.3d at 718). “These factors are only a guide, however, and the trial judge ultimately retains discretion to grant the motion to dismiss.” Malibu Media, LLC v. Redacted, 705 Fed.Appx. 402, 407 (6th Cir. 2017).
Federal courts are limited by the Constitution to resolving “cases and controversies.” See U.S. Const. art. III, § 2, cl. 1; Whitmore v. Arkansas, 495 U.S. 149, 154-155 (1990). Mootness “ousts the jurisdiction of the federal courts and requires dismissal of the case....” Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 335 (1980); see also Sullivan v. Benningfield, 920 F.3d 401, 410 (6th Cir. 2019) (“ ‘[I]f events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give meaningful relief, then the case is moot and must be dismissed.' ”) (quoting Ailor v. City of Maynardville, 368 F.3d 587, 596 (6th Cir. 2004)).
B. Case Law on Mootness in Hague Convention Cases
Several cases support Cornelia's argument that once a child is returned to the petitioner's home country the Hague Convention petition should be dismissed as moot. For example, in Allman v. Coyle, 319 F.Supp.2d 540, 542 (E.D. Penn. 2004), the petitioner/father filed a petition seeking the return of his daughter to Ireland. Three days after the petition was filed, the respondent/mother returned to Ireland with their daughter. Respondent moved to dismiss the petition as moot. The district court agreed, noting that the child's return to Ireland rendered the petition moot because it “ ‘forestalled any occasion for meaningful relief.' ” The Allman Court emphasized that
[t]he authority of a court called on to enforce the Convention and ICARA does not extend to ruling on the merits of any underlying custody claims. Convention art. 19; 42 U.S.C. § 11601(b)(4). Instead, a court may only determine whether a child's removal or retention was “wrongful” and, if so, order the return of the child to the country where he or she was habitually resident immediately before the removal or retention.Id. at 542-543 (footnotes omitted). Accordingly, once the child was returned to Ireland, the court could not provide petitioner with meaningful relief under the Convention. Id. at 543.
Similarly, in Mahmoud v. Mahmoud, No. CV-96-4165, 1997 WL 43524, at *2 (E.D.N.Y. Jan. 24, 1997), the petitioner/mother filed a Hague Convention petition in state court seeking the return of her child to England. The respondent/father removed the case to federal court. Despite the removal, the state court entered an order granting petitioner's relief and ordering the child to England. Respondent moved to vacate the state court's order and to dismiss the action as moot. Although the district court found that the state court erred in entering an order following removal, the petition was moot “because the child has been returned to England and is living with [petitioner].” Id. at *2.
ICARA grants state and federal courts “concurrent original jurisdiction of actions arising under the Convention.” 42 U.S.C. § 11603(a).
In Burton v. Oyekan, No. 95-CIV-5849, 1996 WL 591285, at *1 (S.D.N.Y. Oct. 15, 1996), the petitioner/father filed a petition seeking the return of his children to the United Kingdom. At some point in the litigation, the children were returned to England where custody proceedings were pending. The district court directed petitioner to show cause why the petition should not be dismissed as moot. Although petitioner argued against mootness, the district court disagreed, explaining:
The purpose of the Convention is, in large part, to provide procedures to insure [sic] the return to their habitual residence of children wrongfully removed therefrom. Currier v. Currier, 845 F.Supp. 916, 920 (D.N.H. 1994). If [petitioner] were to succeed in his claim under the Convention, the result would be an order requiring the return of [the children] to the United Kingdom. [The children] having returned to the United Kingdom, as [petitioner] asked this Court to require, the case is moot.Id.
Benjamin says that Cornelia's counsel failed to seek his concurrence with the instant motion before filing as required by E.D. Mich. L.R. 7.1(a). However, at the time the motion was filed, Benjamin's counsel of record was Jennifer Paine. Cornelia attached emails between her counsel and Paine to her reply demonstrating that concurrence was sought but not obtained. See ECF Nos. 1, 2. Thus, this argument lacks merit.
Benjamin strenuously opposes Cornelia's motion to dismiss the petition. His primary argument is that the removal of the children to Germany was wrongful in the absence of an order from this Court. This argument misconstrues the nature of the present petition.
As the Court of Appeals for the Tenth Circuit, aptly put it: “[a]ccording to the Convention, once a petition is filed, a court should consider only whether a respondent's removals of a child are wrongful.” Ohlander v. Larson, 114 F.3d 1531, 1593-1540 (10th Cir. 1997) (citing Hague Convention, arts. 3, 12, 51 Fed.Reg. at 10498, 10499, 42 U.S.C. § 11603(b), (e)). Indeed, the Tenth Circuit went on explain that it was “antithetic to the Convention's intent as a whole, ” for the district court to have “considered whether the petitioner's removals of the child were wrongful.” Id. at 1540. Thus, Benjamin, as the Respondent, cannot challenge whether Cornelia's efforts, as the Petitioner, resulted in the children being wrongfully taken to Germany within the confines of this petition.
Benjamin also cites Holder v. Holder, 305 F.3d 854 (9th Cir. 2002), in suggesting that the Court erred in staying this matter while the state court action was pending. In Holder, the Ninth Circuit in part held “that the district court erred in concluding that it was appropriate to stay proceedings....” Id. at 867. Holder is distinguishable. Here, unlike in Holder, both counsel explicitly requested that this Court stay proceedings pending the resolution of the state court action. The state court proceedings did not result in a favorable ruling for Benjamin. Now, through his third counsel, he seeks to escape his prior counsel's decision to request a stay. Judicial estoppel precludes him from so doing.
“Courts have observed that [t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle[.]” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quotation marks and citations omitted). “Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case:” Id. “First, a party's later position must be ‘clearly inconsistent' with its earlier position.” Id. (citations omitted). “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or the second court was misled[.]' ” Id. (citation omitted). “A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id.
All three factors weigh in favor of judicially estopping Benjamin from now asserting that the undersigned was wrong to stay proceedings in this matter while the parties awaited a ruling from the state court. Benjamin's position is clearly inconsistent with his earlier position. His own counsel requested the stay. Further, the undersigned accepted Benjamin's earlier position that a stay was appropriate in this matter. Finally, Cornelia would suffer an unfair detriment should Benjamin be allowed to successfully argue that the stay was inappropriate. Cornelia seeks to end this case, while Benjamin's position would prolong it. Accordingly, Benjamin should be judicially estopped from changing his position regarding the appropriateness of the stay imposed in this case.
To the extent that Benjamin argues that the state court order enforcing the German custody order violates the Hague Convention, this argument is unavailing. Article 16 of the Hague Convention states:
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
The United States, not Germany, was the country to which the children in this case were alleged to have been wrongfully removed and retained. And a German court decided on the merits of rights of custody. The Michigan state court merely entered an order enforcing the German court's decision. Thus, there was no violation of Article 16 of the Hague Convention. If Benjamin wishes to appeal the German court's decision or the Michigan state court's decision, he may do so through the established appeal procedures for those courts. This Court cannot vacate the Michigan court order because it does not contravene the treaty. See Mozes v. Mozes, 239 F.3d 1067, n.55 (9th Cir. 2001), overruled in part by Monasky v. Taglieri, __U.S.__, 140 S.Ct. 719, 206 L.Ed.2d 9 (2020) (“[F]ederal courts must have the power to vacate state custody determinations and other state court orders that contravene the treaty.”).
Overall, Benjamin cannot obtain the return of the children to the United States by continuing to litigate Cornelia's petition regardless of whether such a removal was wrongful. The only relief available under the petition is return of the children to Germany. This relief has already been affected outside of this Court, rendering the petition moot. Accordingly, the undersigned recommends the petition be dismissed with prejudice.
IV. Conclusion
For the reasons stated above, it is RECOMMENDED that Cornelia's motion be GRANTED and the petition be DISMISSED WITH PREJUDICE.
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 & Hum. 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 & Hum. 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 March 16, 2022.