USA – FEDERAL – MAHMOUD – 1997

Mahmoud vs Mahmoud (E.D.N.Y 1997U.S. Dist. Court No. CV 96 4165 RJD
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of TASHEEM MAHMOUD,
an infant,

SHARON MAHMOUD (a/k/a Sharon Harvey),

Petitioner, MEMORANDUM & ORDER
CV 96 4165 (RJD)
– against –

MOHAMMED ASHRAF MAHMOUD,

Respondent.
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DEARIE, District Judge.

Background

Petitioner Sharon Mahmoud filed a petition in New York state
court, pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (“Hague Convention”) and the
International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. S
11601 et seq., seeking the return of her child and permission to
return with the child to England. On the day of the state court
hearing, respondent Mohammed Mahmoud filed a notice of removal
with the state and federal courts. Respondent advised the state
court that the action had been removed, but the state court judge
entered an order granting petitioner’s requested relief. Ms.
Mahmoud has since returned with the child to England, where
related litigation is currently pending.

Respondent moves to vacate the state court order for lack of
jurisdiction and to dismiss the action as moot. Petitioner agrees
that the action is moot, but seeks a forum to make an application
for attorney’s fees and costs. FN1 Petitioner contends that
this Court lacks subject matter jurisdiction and that the state
court order is valid. For the reasons stated below, the Court
vacates the state court order and dismisses the action as moot.

Discussion

Petitioner argues that the Court lacks subject matter
jurisdiction over this action because the purpose of the Hague
Convention and ICARA is to protect the rights of the person
seeking a child’s return, and therefore, only the petitioner may
control the forum in which the case is heard. Petitioner
concludes that the Court should dismiss the action because
respondent had no right to remove the ICARA proceeding to federal
court from the state court forum chosen by petitioner. Pet. Hem.
Of Law at 3-4. Petitioner’s reliance on In re: the Appication of
Fjeldheim v. Fjeldheim, No. 95-CV-394, (W.D. Mich. Jan. l9,
1996), is misplaced because Fieldheim addressed the question of
who may bring a petition pursuant to the Hague Convention and
1CARA, but did not address removal of an ICARA proceeding.

The Court concludes that subject matter jurisdiction is proper
because the matter could have been originally filed by petitioner
in federal court. ICARA grants state and federal courts
“concurrent original jurisdiction of actions arising under the
Convention.” 42 U.S.C.  11603(a). The federal removal statute,
28 U.S.C.  1441(a), authorizes removal by the defendant to
federal court if original jurisdiction exists in the district
court, except “as otherwise expressly provided.” Neither the
Hague Convention nor ICARA prohibits removal. “The general rule
is that ‘absent an express provision to the contrary, the removal
right should be respected when there is concurrent
jurisdiction.'” Johnson v. First Unum Life Ins. Co., 914 F.
Supp. 51, 52 (S.D.N.Y. l996) (citations omitted); see also
Leonardis v. Local 282 Pension Trust Fund, 391 F.Supp. 554, 557
(E D.N.Y. 1975) (“the existence of concurrent state and federal
jurisdiction does not operate to defeat defendant’s right to
remove to federal court”).

The Court vacates the state judge’s order as null and void,
pursuant to Fed. R. Civ. Pro. 60(b}(4), because it was entered
subsequent to the filing of notice of removal. Section 1446(d) of
Title 28 provides that once removal is effectuated, “the State
court shall proceed no further unless and until the case is
remanded.” New York State National Organization of Women v.
Terry, 691 F.Supp. 1324, 1330 n.5 (S.D.N.Y. 1988). Upon removal,
the state court is deprived of jurisdiction “irrespective of
whether the action is removable.” 1A J. Moore Federal Practice PO
168(3.-8), at 1306 (2d ed. 1965) (quoted in United States ex gel.
Echevarria v. Silberglitt, 441 F.2d 725, 227 (2d Cir. l971)). An
order of the state court entered after removal is void. Tarbell
v. Jacobs, 856 F. Supp. 101, 104 (N.D.N.Y. 1994).

The court dismisses this matter as moot because the child has
been returned to England and is living with Ms. Mahmoud, which
was the principal relief requested by the petition. The Clerk of
the Court is directed to close this case.

SO ORDERED.

Dated: Brooklyn New York
January 24, 1997

/s/ Raymond J. Dearie
______________________
RAYMOND J. DEARIE
United States District Judge

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1. The question of petitioner’s legal fees and costs was
resolved during oral argument with the understanding of
counsel.