United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
cause is before the Court on Respondent's Motion to
Dismiss , brought under Federal Rule of Civil Procedure
12(b)(6). For the following reasons, the motion is denied.
Israel Argueta Diaz (“Diaz”) filed a Verified
Petition in this Court seeking the return of his two minor
grandchildren to Guatemala under The Convention on the Civil
Aspects of International Child Abduction (“Hague
Convention”) and the International Child Abduction
Remedies Act (“ICARA”), codified at 22 U.S.C.
§§ 9001, et seq.
Verified Petition, Diaz alleges, inter alia, that he
has custody rights with respect to the subject minor children
under Guatemalan law because his son, who is the
children's father, is currently incarcerated.
See Pet.  ¶ 5. Diaz also alleges that he was
exercising his custodial rights while the subject minor
children were living with him in Guatemala, see Id.
¶¶ 5, 15, and that he had not consented or
acquiesced to their being removed from that country by their
mother, Suemills Exeli Diaz Lopez (“Lopez”),
id. ¶ 13.
13, 2018, Lopez filed her motion to dismiss. Diaz responded
in opposition, and Lopez failed to file a timely reply. The
Court therefore considers the motion fully briefed.
considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.'”
Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)). To overcome a Rule 12(b)(6) motion, Plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Factual
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Id. at 555 (citations and footnote
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). It follows that
“where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'—ʻthat the pleader is entitled
to relief.'” Id. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). “This standard ‘simply
calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence of' the necessary claims
or elements.” In re S. Scrap Material Co.,
LLC, 541 F.3d 584, 587 (5th Cir. 2008) (citing
Twombly, 550 U.S. at 556).
parties focus primarily on whether Diaz has plausibly pleaded
that the removal of his grandchildren breached his custody
rights under Guatemalan law. See Larbie v. Larbie,
690 F.3d 295, 307 (5th Cir. 2012) (discussing elements under
Hague Convention). According to Diaz, Guatemalan Civil Code
Articles 299 and 283 gave him those rights, and he was
exercising them before Lopez left with the children.
See Pet.  ¶¶ 5, 15.
disagrees, but she has not established her position. To
begin, she offers only a conclusory assertion that Diaz's
interpretation of Articles 299 and 283 is
“mistaken.” Mot.  ¶ 8. According to her,
Diaz's error is plain from the “clear and
unambiguous language of [the] Guatemalan civil code.”
Id. ¶ 13. Yet Lopez provides no relevant legal
authority, never discusses the statutory language, and fails
to provide an English translation of Articles 299 and 283 for
the Court to consider. While Lopez may ultimately be correct,
she has not yet explained why.
Lopez says Diaz has not taken the necessary steps under
Guatemalan law to exercise custodial rights. Id.
¶ 14. Even assuming Lopez supported her claim with
record evidence—she did not—it would still be a
factual assertion that exceeds the scope of the pleadings.
Under Rule 12(b)(6), the Court's review is limited to the
pleadings, and it must accept Diaz's factual averments as
true. Twombly, 550 U.S. at 556. Viewing those
averments in the light most favorable to Diaz, he has stated
a plausible claim. Lopez can contest that claim with record
evidence at the appropriate time.
the Court concludes—based on the pleadings before
it—that Diaz stated a plausible claim. Lopez's
Motion to Dismiss will, therefore, be denied without
prejudice to her right to raise her legal ...