Mezo v Elmergawi (E.D.N.Y. 1994)855 F.Supp. 59
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MEMORANDUM DECISION AND ORDER
SPATT, District Judge.
<* Page 60> In one of the few cases to address the International
Child Abduction Act (the “Child Abduction Act”), 42 U.S.C. Secs
11601 – 11610, this Court is called upon to determine whether the
Child Abduction Act applies to a situation in which two children
are taken from the United States and brought to Egypt and then to
Libya.
The plaintiff Barbara Mezo (“Mezo”) commenced this action pursuant
to the Child Abduction Act to obtain an injunction ordering the
Secretary of State, Warren Christopher, to perform his duties
under the Hague Convention on the Civil Aspects of International
Child Abduction, an international treaty (the “Hague Convention”).
The plaintiff Mezo had previously moved for a preliminary
injunction in this action, which motion was denied by the
Honorable Denis R. Hurley on August 10, 1993 and affirmed by the
Second Circuit on March 15, 1994 (See Mezo v. Elmergawi 22 F.3d
1091 [2d Cir.1994] [unpublished opinion] [finding no likelihood of
success on the merits since the children were taken to either
Libya or Egypt; countries that did not sign the Hague
Convention]).
The defendant Warren Christopher, as the Secretary of State, now
moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1)
and 12(b)(6) on the grounds that the plaintiff failed to state a
claim, as a matter of law.
At oral argument on February 4, 1994, the Court indicated to the
plaintiff Mezo that it was considering the dismissal of this
action with respect to both defendants, not just the movant
defendant Warren Christopher. The Court further issued an Order,
dated February 4, 1994, instructing the plaintiff that “should the
plaintiff Barbara Mezo wish to file papers in opposition to the
possible dismissal of the above entitled action as to both
defendants, the papers must be served and filed on or before
Friday, February 18, 1994” (Order, dated Feb. 4, 1994, at p. 2).
BACKGROUND
The plaintiff Mezo seeks the return of her two children, who are
allegedly living in Lib- <* Page 61> ya with the plaintiff’s
husband, Abdelaziz Mohammed Elmergawi, a defendant in this action
(See Complaint, at Para. 6). The complaint alleges that the
plaintiff and her husband separated on June 13, 1986, after which
time, both children lived with the plaintiff (See Complaint, at
Para. 7). After the divorce proceedings were commenced, but prior
to determinations relating to the issues of custody, alimony,
and/or child support, the complaint alleges that the plaintiff’s
husband abducted both children on May 20, 1988 and went to Egypt
(See Complaint, at Para. 11). On August 17, 1988, the plaintiff
was granted legal custody of both children by order of a Justice
of the Supreme Court, Kings County (See Complaint, at Para 12).
Thereafter, the plaintiff alleges that she traveled to Egypt and
was eventually awardcd eustody of both children under Egyptian law
in an Egyptian Court (See Complaint, at Para. 14). However, after
this award of custody the plaintiff’s husband allegedly fled with
both children to Libya, where the three presently reside (See
Complaint, at Para. 14).
The plaintiff instituted this action in an attempt to utilize the
provisions of the Child Abduction Act and have this Court order
the defendant Secretary of State to implement the provisions of
the Child Abduction Act and obtain the return of the plaintiff’s
two children. According to an Executive Order signed by former
President Ronald Reagan (Executive Order No. 12648, 53 F.R. 30637
[1988] ), the Department of State is designated as the “Central
Authority” of the United States for the purposes of the Hague
Convention and the Child Abduction Act.
It is the position of the defendant Secretary of State that
neither the Child Abduction Act, nor the Hague Convention, apply
to this case because neither Egypt nor Libya are signatories to
the Hague Convention and are therefore not bound by its
requirements. The defendant Christopher moves to dismiss the
complaint, pursuant to Fed.R.Civ.P. 12(b)(6).
DISCUSSION
Motion to Dismiss:
On a motion to dismiss for failure to state a claim, “the court
should not dismiss the complaint pursuant to Rule 12(b)(6) unless
it appears ‘beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief’ ”
(Goldman v. Belden, 754 F.2d 1059, 1065 [2d Cir.1985] [quoting
Conley v. Gibson, 355 U.S. 41, 45- 46, 78 S.Ct. 99, 101-02, 2
L.Ed.2d 80 (1957)]; see also IUE AFL-CIO Pension Fund v Herrmann,
9 F.3d 1049, 1052-53 [2d Cir. 1993]). The Second Circuit stated
that in deciding a Rule 12(b)(6) motion a Court may consider
“only,the facts alleged in the pleadings, documents attached as
exhibits or incorporated by reference in the pleadings and matters
of which judicial notice may be taken” (Samuels v Air Transport;
Local 504, 992 F.2d 12, 15 [2d Cir.1993]; see also Rent
Stabilization Ass’n of the City of New York v. Dinkins, 5 F.3d
591, 593-94 [2d Cir.1993] [citing Samuels, supra, 992 F.2d at p.
15]).
It is not the Court’s function to weigh the evidence that might be
presented at a trial, the Court must merely determine whether the
complaint itself is legally sufficient (See Goldman, supra, 754
F.2d at p. 1067) and in doing so, it is well settled that the
court must accept the allegations of the complaint as true (see
LaBounty v. Adler, 933 F.2d 121, 123 [2d Cir.1991]; Procter &
Gamble Co. v. Big Apple Indus. Bldgs, Inc., 879 F.2d 10, 14 [2d
Cir.1989], cert denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d
743 [1990]), and construe all reasonable inferences in favor of
the plaintiff (See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 1686, 40 L.Ed.2d 90 [1974]; Bankers Trust Co v Rhoades, 859
F.2d 1096, 1099 [2d Cir.1988], cert. denied, 490 U.S. 1007, 109
S.Ct. 1642, 104 L.Ed.2d 158 [1989]).
The Court is mindful that under the modern rules of pleading, a
plaintiff need only provide “a short and plain statement of the
claim showing that the pleader is entitled to relief”
(Fed.R.Civ.P. 8[a][2]), and that “[a]ll pleadings shall be so
construed as to do substantial justice” (Fed.R.Civ.P. 8[f] ). It
is within this framework that the Court addresses the present
motion to dismiss.
Hague Convention/International Child Abduction Act:
Congress promulgated the International Child Abduction Remedies
Act in 1988 <* Page 62> in order to implement the provisions of
the Hague Convention in the United States (See 42 U.S.C. Sec
11601[b][1] [“It is the purpose of this chapter to establish
procedures for the implementation of the [Hague] Convention in the
United States”]; see also Wanninger v Wanninger, 850 F.Supp. 78,
80 [D.Mass. 1994] ). Therefore, to determine the scope of the
Child Abduction Act, the Court must examine the relevant
provisions of the Hague Convention.
The preamble to the Hague Convention states that it was adopted in
order “to protect children internationally from the harmful
effects of their wrongful removal or retention and to establish
procedures to ensure prompt return to the State of their habitual
residence, as well as to secure protection for rights of access”
(Hague Convention, 51 F.R. 10494,; 10498 [1980]; see also
Friedrich v. Friedrich, 983 F.2d 1396, 1400 [6th Cir.1993]
[addressing purpose of convention]; Currier v. Currier, 845
F.Supp. 916, 920 [D.N.H. 1994] [same]; Klam v. Klam, 797 F.Supp.
202, 205 [E.D.N.Y.1992] [same]).
Within the meaning of the Hague Convention, the removal of a child
from a country is considered wrongful when:
“a) it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under the
law of the State in which the child was
habitually resident immediately before the
removal or retention; and
b) at the time of removal or retention those
rights were actually exercised, either jointly
or alone, or would have been so exercised but
for the removal or retention” (Hague
Convention, Article 3; see also Meredith u
Meredith, 759 F.Supp. 1432, 1434
[D.Ariz.1991]).
This initial burden of proof rests with the plaintiff (See
Friedrich, supra, 983 F.2d at p. 1400; Currier, supra, 845 F.Supp.
at p. 920).
Unfortunately, the provisions of the Hague Convention, which in
this Court’s view is an admirable demonstration of constructive
international policy legislation, are only applicable to those
countries who signed the Convention and thereby agreed to abide by
its terms. The limited applicability of this Convention is noted
in several places.
First, the stated objective of the convention is to “secure the
prompt return of children wrongfully removed to or retained in any
Contracting State” (Hague Convention, Article 1 [emphasis added];
see also; Wanninger, supra, 850 F.Supp. at 80 [United States and
Germany are both signed Hague Convention]; Slagenweit v.
Slegenweit, 841 F.Supp. 264, 268 [N.D.Iowa 1993] [same]). As a
result, the Convention does not apply to a child “removed to” or
“retained in” a country which is not a “Contracting State”.
Further, the provisions of the Convention only apply to a “child
who was habitually resident in a Contracting State immediately
before any breach of custody or access rights” (Hague Convention,
Article 4; see also Mohsen v Mohsen, 715 F.Supp. 1063, 1065
[D.Wyo.1989]).
When the above two limitations are examined together, both appear
to illustrate that the Hague Convention only applies in a
situation in which a child: (1) is “habitually resident” in a
Contracting State prior to removal; and (2) is removed to another
Contracting State (See Hague Convention, Articles 1 & 3; see also
Application of Ponath, 829 F.Supp. 363, 364 [D.Utah 1993]).
Second, the Child Abduction Act requires the President to
designate a Federal Agency to serve as the “Central Authority for
the United States under the Convention” (42 U.S.C. Sec 11606[a]).
This “Central Authority” appears to act as a mediator between
countries in an attempt to obtain the safe return of an abducted
child. (Hague convention, Article 7). As mentioned above, former
President Ronald Reagan designated the Department of State as the
Central Authority of the United States (See 53 F.R. 30637 [1988];
see also Bureau of Consular Affairs, U.S. Department of State,
International Parental Child Abduction, pp.10 [August 1993]
[discussing procedure under Hague Convention]).
One of the regulations promulgated by the Department of State sets
forth the procedures to be followed in situations involving a
child abducted from the United States (See 22 C.F.R. Sec 94.7).
This regulation specifically states that it applies only when the
De- <* Page 63> partment of State receives “an application
requesting access to a child or return of a child abducted from
the United States and taken to another country party to the
Convention …” (22 C.F.R. Sec. 94.7 [emphasis added] ). This
regulation clearly sets forth procedures that are applicable if a
child is taken from the United States and is taken to another
signatory country. Alternatively, in situations where a child is
retained in the United States, the only procedures that are set
forth in the regulations promulgated by the Department of State
are those which apply when a request for the child’s return is
made from another signatory country (See 22 C.F.R. Sec. 94.6).
Therefore, the regulations set forth by the Department of State,
which interpret and implement the Child Abduction Act, only apply
in situations involving two countries that signed the Hague
Convention. If a child is taken from a signatory country and is
retained in a non-signatory country, it appears that there is no
remedy under either the Child Abduction Act or the Hague
Convention. Similarly, if a child is taken from a non-signatory
country and is retained in a signatory country, there is no remedy
under either enactment (See Mohsen, supra, 715 F.Supp. at p.
1065).
Therefore, the Court concludes that the regulations promulgated by
the Department of State support the proposition that a remedy is
only available under the Child Abduction Act and the Hague
Convention when the child is wrongfully removed from a signatory
country and retained in another signatory country (See, e.g.,
Grimer v. Grimer, 1993 WL 142695 [D.Kan. 1993] [Case No.
93-4086-DES]; Levesque v Levesque, 816 F.Supp. 662 [D.Kan.1993]).
It is within this legal framework, that the Court examines the
plaintiff’s complaint to determine whether it alleges the removal
of the children from a signatory country and their retention in
another signatory country. In this regard, the Court is mindful
that the plaintiff is proceeding pro se and that “the complaint
must be ‘liberally construed’ in favor of the plaintiff”] and held
to ‘less stringent standards than formal pleadings drafted by
lawyers’. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66
L.Ed.2d 163 (1980) (per curiam) (citing Hatnes v. Kerner, 404 U.S.
519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d-652 (1972))” (Ferran v
Town of Nassau, 11 F.3d 21, 22 [2d Cir.1993] ).
Plaintiffs Complaint:
The factual description contained in the complaint states that the
plaintiff’s children were taken from the United States to Egypt,
and thereafter from Egypt to Libya (Complaint, at Para 11 and 14).
Thus, the complaint clearly alleges the removal of her children
from the United States, a signatory state. However, although the
United States is a signatory country to the Hague Convention,
Egypt and Libya are not. As a result, based on the reasons set
forth above, the Convention and the Act are not applicable in this
situation. Accordingly, the Secretary of State cannot be compelled
to act pursuant to the powers granted to his office by the Act and
the plaintiff’s cause of action fails to state a claim, as a
matter of law.
As to the defendant Abdelaziz Mohammed Elmergawi, the husband of
the plaintiff Mezo, the Court finds that for the reasons stated
above, since the Child Abduction Act does not apply to a situation
in which children are taken to either Libya or Egypt,
non-signatory countries, there is no basis for this Court to
assert jurisdiction over the defendant Elmergawi. Accordingly,
after providing oral and written notice to the plaintiff of the
Court’s contemplated dismissal of this action as to both
defendants, and having received no opposition papers, this action
is dismissed against the defendant Elmergawi pursuant to
Fed.R.Civ.P. 12(b)(6), based on the failure to state a claim.
It is a tragic circumstance when, despite two valid court orders,
a mother is unable to regain the lawful custody of her two minor
children, or to even see her children, by reason of the unlawful
conduct of their father. However, since the Federal Court is a
court of limited jurisdiction and the Child Abduction Act is only
applicable between countries that signed the Hague Convention,
this Court does not have jurisdiction under the statute and must
therefore dismiss the complaint.
<* Page 64> CONCLUSION
Based on the foregoing:
1) The defendant’s motion to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(6) against the defendant Warren Christopher as
Secretary of State, is granted on the ground that the plaintiff
failed to state a claim under the International Child Abduction
Remedies Act, 42 U.S.C. Secs 11601-11610;
2) The Court’s sua sponte motion to dismiss the complaint against
the defendant Abdelaziz Mohammed Elmergawi pursuant to
Fed.R.Civ.P. 12(b)(6) is granted on the ground that the plaintiff
failed to state a claim under the International Child Abduction
Remedies Act, 42 U.S.C. Secs 11601-11610; and
3) Having dismissed the complaint, the Court need not address the
motion by the plaintiff Mezo to transfer the venue of this action
to the Brooklyn courthouse of the United States District Court for
the Eastern District of New York.
The Clerk of the Court is advised that this Order closes the case.
SO ORDERED.
13 Jun 1994