The opinion of the court was delivered by: ARTHUR D. SPATT
In one of the few cases to address the International Child Abduction Act (the "Child Abduction Act"), 42 U.S.C. §§ 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10, 1993 and affirmed by the Second Circuit on March 15, 1994 (See Mezo v. Elmergawi, 22 F.3d 1091 [2d Cir. 1994] [unpublished opinion] [finding no likelihood of success on the merits since the children were taken to either Libya or Egypt; countries that did not sign the Hague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).
The plaintiff Mezo seeks the return of her two children, who are allegedly living in Libya with the plaintiff's husband, Abdelaziz Mohammed Elmergawi, a defendant in this action (See Complaint, at P 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 P 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 P 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 P 12).
Thereafter, the plaintiff alleges that she traveled to Egypt and was eventually awarded custody of both children under Egyptian law in an Egyptian Court (See Complaint, at P 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 P 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 ), 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).
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, 2 L. Ed. 2d 80, 78 S. Ct. 99 (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 ...