Stone v. U.S. Embassy Tokyo, Civil Action No.: 19-3273 (RC)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRUDOLPH CONTRERAS United States District Judge
PartiesJACK STONE, Plaintiff, v. U.S. EMBASSY TOKYO, et al., Defendants.
Docket NumberCivil Action No.: 19-3273 (RC)
Decision Date24 July 2020

JACK STONE, Plaintiff,
U.S. EMBASSY TOKYO, et al., Defendants.

Civil Action No.: 19-3273 (RC)


July 24, 2020

Re Document Nos.: 72, 73, 78, 79, 81, 82




In this case, Plaintiff Jack Stone ("Stone"), proceeding pro se, claims that the United States Embassy in Tokyo and the Department of State ("Defendants") have unlawfully refused to issue citizenship and immigration documents that he requested for his family. This case was transferred from the District of Hawaii, and Plaintiff has now made additional filings in this court: a request for an order of return under the Hague Convention on the Civil Aspects of International Child Abduction; motions for orders to compel the Department of State to grant U.S. citizenship to his children and issue his wife's visa; and claims under 42 U.S.C. § 1983 and the Federal Tort Claims Act ("FTCA") for an incident involving a Department of State official. Construing these filings as motions to amend the complaint, the Court will grant them in part and deny them in part for the reasons explained below.

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Plaintiff, a United States citizen currently residing in Japan, filed suit against Defendants in the District of Hawaii, seeking an order to compel the issuance of Plaintiff's first-born child's passport and unspecified damages. Pl.'s Second Am. Compl. ("Pl.'s SAC") 1, 9, ECF No. 39. In Plaintiff's Second Amended Complaint, the operative complaint in this case, Plaintiff pled that his wife left the U.S. for Japan with Plaintiff's child without Plaintiff's consent. Pl.'s SAC ¶ 6. Plaintiff later claimed that his wife left the U.S. out of fear that she would be deported because Defendants had not issued her visa, despite Plaintiff submitting an I-130 (Petition for Alien Relative) on behalf of his wife more than a year prior. See Pl.'s Aff. of Wife's Visa Appl. ("Pl.'s Aff.") 5, 7, ECF No. 102.

The District Court for the District of Hawaii transferred this case to this District "so that substantive issues can be addressed on their merits." Order Den. Pl.'s Emergency Mot. and Transferring Action ("Transfer Order") 17, ECF No. 64. Prior to transferring this case, however, the District of Hawaii Court made two preliminary determinations. First, Plaintiff's vague claim for unspecified damages was insufficient to find waiver of Defendants' sovereign immunity for the claim. See id. at 9. Second, the Administrative Procedure Act applied to Plaintiff's claim for

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an order to compel Defendants to issue his first-born child's passport, "thereby waiving [Defendants'] sovereign immunity." Id. at 10. This claim is currently the subject of a separate summary judgment briefing and not at issue here.

Following the District of Hawaii's transfer of this case, Plaintiff made additional filings, including: (1) a request for a return order as to Plaintiff's first-born child under the Hague Convention on the Civil Aspects of International Child Abduction, ECF Nos. 72, 782; (2) a motion to compel U.S. citizenship for Plaintiff's second-born child, ECF Nos. 73, 793; (3) a request to add Hughes Ogier, a Department of State official, to the suit as an additional defendant and bring claims under 42 U.S.C. § 1983 and the Federal Tort Claims Act for an unrelated incident involving him, ECF Nos. 81, 81-1; and (4) a motion to compel Defendants to issue Plaintiff's wife's visa, ECF No. 82.4 The Defendants treated these filings as motions to amend the Second Amended Complaint. The filings are now fully briefed and ripe for the Court's consideration.

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The Court agrees with Defendants that Plaintiff's filings should be construed as motions to amend, as the filings seek to introduce novel claims, add new factual allegations and a new defendant, and broaden the scope of the operative complaint.5 A party may amend its pleading once as a matter of course within twenty-one days after serving its pleading, or within certain time periods if the pleading is one to which a responsive pleading is required. Fed. R. Civ. P. 15(a)(1); see Bode & Grenier, LLP v. Knight, 808 F.3d 852, 860 (D.C. Cir. 2015). Otherwise (such as here, when a party has already filed amended pleadings), a party may amend its pleading only with the opposing party's consent or the court's leave. Fed. R. Civ. P. 15(a)(2); see also Knight, 808 F.3d at 860. The decision to grant or deny leave to amend "is committed to a district court's discretion," Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996), and should be freely given when justice so requires, Fed. R. Civ. P. 15(a)(2). However, the court may deny a motion to amend if the proposed amendment would be futile. De Sousa v. Dep't of State, 840 F. Supp. 2d 92, 113 (D.D.C. 2012) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The motion to amend is futile if the "proposed claim would not survive a motion to dismiss." James Madison LTD by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). Of course, a court must be mindful that a pro se litigant's complaint is "construed liberally and is held to 'less stringent standards than formal pleadings drafted by lawyers.'" Lemon v. Kramer, 270 F. Supp. 3d 125, 133 (D.D.C. 2017) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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As an initial note: the local rules provide that a motion for leave to amend "shall attach, as an exhibit, a copy of the proposed pleading as amended." Loc. Civ. R. 15.1. Failure to follow Local Rule 15.1 may be the basis for the court to deny leave to amend. See Parker v. District of Columbia, No. 14-2127, 2015 WL 7760162, at *2 (D.D.C. Dec. 1, 2015) (holding that a pro se plaintiff's request to amend was insufficient because he failed to comply with local Rule 15.1 and did not indicate the grounds on which he sought an amendment, leaving the court "unable to assess the merits of his request"). Although Mr. Stone did not provide a consolidated version of a proposed third amended complaint in any of his filings, he did provide enough detail for the Court to evaluate the merits of each request. For these reasons, the Court will overlook the Rule 15.1 requirement and consider each additional proposed claim in turn.

A. Order for Return under the Hague Convention on the Civil Aspects of International
Child Abduction

Invoking the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"), Plaintiff requests an order for return for his first-born minor child, who was taken by Plaintiff's wife to Japan. Pl.'s SAC ¶ 6. Defendants' primary contention is that an amendment to include this request would be futile because the Court lacks jurisdiction to order the child's return from Japan. Defs.' Opp'n to Pl.'s Mot. for Leave to Am. ("Defs.' Opp'n") 3, ECF No. 89.

The Hague Convention on the Civil Aspect of International Child Abduction aims to "secure the prompt return of children wrongfully removed to or retained in any Contracting State" and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention on the Civil Aspects of International Child Abduction art. 1(a), Oct. 25, 1980,

Page 6 [hereinafter Convention]. The "central operating feature" of the Convention is a parent's right to petition a Contracting state for the child's return to the child's country of habitual residence, which would be the forum for any child custody adjudications. Abou-Haidar v. Vazquez, 945 F.3d 1208, 1210 (D.C. Cir. 2019) (internal citation omitted).

The United States, a contracting state to the Convention, codified the provisions of the Convention through the International Child Abduction Remedies Act ("ICARA"). See Abbott v. Abbott, 560 U.S. 1, 5 (2010) (citation omitted). Under ICARA, "[a]ny person seeking to initiate judicial proceedings under the Convention for the return of a child . . . may do so . . . by filing a petition for the relief sought in any court . . . which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." Yaman v. U.S. Dep't of State, 786 F. Supp. 2d 148, 154 (D.D.C. 2011) (quoting 42 U.S.C. § 11603(b)). ICARA is consistent with Article 12 of the Convention, which provides that "[w]here a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is . . . the authority concerned shall order the return of the child forthwith." Convention art. 12 (emphasis added). Overall, it is abundantly clear that, for a federal district court to order the return of an abducted child under ICARA, the aggrieved parent must "file a petition in state or federal district court for the return of a child located within the court's jurisdiction," Haimdas v. Haimdas, 720 F. Supp. 2d 183, 197 (E.D.N.Y. 2010), and that a child located abroad is not within that jurisdiction, see id. ("[P]etitioner bears the initial burden to show by a preponderance of the evidence that the child has been wrongfully removed to or retained in this country within the meaning of the Convention." (emphasis added)); see also Fernandez v. Bailey, 909 F.3d 353,

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359 (11th Cir. 2018) ("Because ICARA requires reviewing courts to have personal jurisdiction over the abducted child, a parent can only file a return petition in the district where the child is located.").

Because Plaintiff represents that he discovered his child in Japan and currently resides there with his child, there is no dispute that the child is located in Japan. Plaintiff's complaint and other filings make clear that his...

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