Trepanier-Boulay v. Gulmi-Landy

Filing 10

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated in the attached memo and order. Given that the record conclusively demonstrates that the court lacks jurisdiction, the Motionto Dismiss (Dkt. No. 6 ) is hereby ALLOWED, without prejudice. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ETIENNE TREPANIER-BOULAY,
Petitioner
v.
ZOEY GULMI-LANY,
Respondent

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C.A. NO. 13-CV-30039-MAP

MEMORANDUM AND ORDER REGARDING
RESPONDENT’S MOTION TO DISMISS
(Docket No. 6)
June 10, 2013
PONSOR, U.S.D.J.
Petitioner, a citizen of Canada, seeks the return of
his child pursuant to the Convention on the Civil Aspects of
International Child Abduction (“the Hague Convention”) and
the International Child Abduction Remedies Act (“ICARA”),
codified in 42 U.S.C. §§ 11601-11610.

Respondent has filed

a Motion to Dismiss for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1).
On June 10, 2013, counsel appeared for argument on the
Motion to Dismiss.

At the conclusion of the hearing, the

court allowed the motion, setting forth its reasons orally.
In summary, the basis for dismissal is as follows.
It is axiomatic that a Petitioner bears the burden of
proof in demonstrating the existence of jurisdiction.
Respondent has challenged jurisdiction and set forth in her
verified motion facts that, if accepted, conclusively

demonstrate that the child’s habitual home is not, and never
has been, Canada, as alleged in the petition.

Moreover, the

sworn facts offered by Respondent demonstrate that the child
was never wrongfully removed from Canada and that Petitioner
has failed to exercise custodial rights.

None of the facts

sworn to by Respondent has been, to any significant degree,
contested by Petitioner despite the fact that the
allegations are of such a grave nature that any parent would
naturally contest them, if a contest were possible.

Beyond

this, even the facts alleged in the petition demonstrate
that Respondent removed the child from Canada, at a minimum,
in September of 2012, for an indefinite period with the
consent of Petitioner.
The ICARA statute contemplates swift action by the
court.

Resolution of the case has already been delayed

excessively.

Given that the record conclusively

demonstrates that the court lacks jurisdiction, the Motion
to Dismiss (Dkt. No. 6) is hereby ALLOWED, without
prejudice.
Petitioner argued in court that he has not been given
adequate time to contest the factual allegations contained
in Respondent’s verified motion.

This argument was offered

despite the fact that Respondent’s motion, including her
verified factual allegations, has been pending for some
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three months.

Petitioner suggested, without being specific,

that a contest of some of the allegations contained in
Respondent’s motion might be possible, if he were now to
take the opportunity to file his own counter-affidavit.
With this in mind, the court’s ruling is without prejudice.
However, if Petitioner files a complaint in this court under
this statute without an adequate jurisdictional basis a
second time, the court is likely to impose attorney’s fees
and costs to reimburse Respondent.
It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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