Free Motion to Stay - District Court of Delaware - Delaware

7 Case -1 :06-cv—00703-SLFI an rDocu ment 20 Filed 09/17/2007 Page 1 of 4
TN THE UNITED STATES DISDRTCT COURT
FOR THE DISTRICT OF D%VVARE
EMMANUEL N. LAZARIDIS, mdividuaily and )
in his capacity as legal custodian of V. L., a minor, )
)
Plaintiff, ) Civil Action No. 06-793 SLR
)
v. ) Hon. Sue L. Robinson
TINA LAVINA WEHMER, ) Z;
MA l I HEW N EH)ERl\/IAN , ) m rr:
caraanrrta sores, ) ¤ fj ae,
AFRODITI MTNA MAUROETDI, and ) EQ as rx
the OFFICE OF TI-IE ATTORNEY GENERAL ) MOTION FOR STAY P . ..,3
OF THE STATE OF DELAWARE, by and ) PENDING APPEAL g Sri E5
through Joseph R. Biden, HI, Attorney General. ) ·• ry Q
) ‘°· ur
Defendants. " :3
)
P@tiff, Emmanuel N , Lazaridis, requests that the Court stay its order of August 8, 2007
pending appeal and order that service he effected on the defendants pursuant to the Court‘s prior order
of April I6, 2007, and in support of his request states as follows:
l. On luly 30, 2007 the Family Court of the State of Delaware issued the Civil Disposition
annexed to plaintiffs concurrently-strbniitted Motion For an Injunction Pending Appeal, vacating
registration of the April 5, 2005 order issued by the Court or First Instance of Lyon, France,
ruling that Grwe is properly exercising jinisdiction over the matter of custody of plaintiffs
mor child, but reserving judgement with respect to registration of Greek child custody orders
until the present case is heard on merits, stating: "lf there are no pleadings within @r days
of the District Court decision and this court trfourzd to havejttrisdiction to register·f0reign.
custody carriers, the January 3l, 2007 Greek Order shall he deemed to be registered in this court,
wifnout further oourt action, effective two months after the final order in the District Court case."
(emphasis added).

H imceee i :0e-etloorss-sfu J Document 20 Filed os/17/2007 Page 2 er 4
2. The Family Court's order of J uiy 30, 2007 explicitly recognises that its jtuisdiction is at issue,
and it defers to this Courts l`ut1u·e judgement on the constitutional issues.
3. This Court dismissed the present ease without clearly stating the grounds for dismissal in its
August 8, 2007 Order. In footnote 2 of its Order the Court noted: "Vfhen a litigant proceeds in
forma pauperis, 20 U.S.C. § 1915 provides for dismissal under certain circumstances.
Specifically, § 19l5(e)(2)(E) provides that the oourt may dismiss a complaint, at any time, if the
action is frivolous, malicious, fails to state a claim upon which relief may he granted or seeks
monetary relief from a defendant immune from such relief. (emphasis added)."
4. The Court reasoned that "any action" it might take "regarding the French Court custody orders
has the potential to affect the felony arrest warrant issued hy the Ottawa County [Michigan]
Court", "hecause [plaurtiff] urges court to void the French Court orders which awarded
custody of VL. to his former wife and were the impetus of the felony arrest warrant" As stated
above and indicated in plaintiff s concurrent1y—submittod Motion F or an injunction Pending
Appeal, the eompeting jurisdictional claims of France and Greece have already been ruled
upon by the lfauiily Court of the State of Belaware, which surpassed its eonstituuoual
authority iu so doing hut nevertheless found in favour of iniual and continuing Greek
jrrrisdiction over the ehhd custody dispute.
5. If the Court meant to dismiss the present case hi order to impede recognition of Greek
jruisdiction over the child custody rrntter, the Family Courts final order of July 30, 2007
substantially undermined the Courts August 3, 2007 reasoning.
6. if the Court meant to disrriss the present case on the basis of the doctrine of fugitive
disentitlement —— arguably a failure to state a claim or upon which relief may be granted —- its
order, made prior to service of process on the defendants, was premattue as well as improper.
7. Complaint fled in forma pauperis was improperly dismissed for failure to state claim before
servioe of process. Ooress v. Sobolevirch, 914 F .2d 428 (3rd Cir. 1990). When a complaint is
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dismissed for failure to state a claim upon which relief may be granted, a plaintiff should be
granted the opportunity to amend his complaint unless amendment would be futile. Shane v.
Fauver, 213 F.3d 113, 116 (3rd Cir. 2000).
8. The Court referred to Luzoridiy v. The Herald Company, No. 06-1830 (6th Cin, March 13,
2007) in its order, where it is specifically noted that a court "would be advised to resist
application of the doctrine [of fugitive dis entitlement] were some fundamental right implicated".
The present case implicates the fundamental rights of plaintiff and his minor child.
9. Moreover plaintiff has answered the Ottawa County arrest warrant and has been appointed an
attorney to ebfect his defence: Mr. Thomas Smith, The Smith Law Firm, 314 N. 120th Avenue,
Suite 5, Holland, Michigan 49424.
10. District Court may dismiss pro se complaint sua sponte, without service of process and without
providing plaintiffs opportunity to amend, only if complaint is frivolous; complaint may be
dismissed as hivolous only if it appears beyond doubt that plaintiff can prove no set of facts
which would entitle him to relief. Brooks v. Setter, 779 F.2.d 1177 (6th Cir. 1985). When
frivolous complaint can be remedied by amendment, district court must pennit amendment and
may not dismiss complaint as frivolous. Urrutia v. Harrisburg County Police Dept, 91 F.3d
451 (3rd Cir. 1996). ln order to satisfy test of frivolousness under 28 USCS § 1915(d)
[re-designated as (e)], it is essential for court to find beyond doubt and under any arguable
construction, both in law and in fact, of substance of claim, that plaintiff would not be entitled to
relief. Boyce v. Alizodufr, 595 `F.2d 948 (4th Cir. 1979), Dismissal under either 28 USCS §§
1915A(a) or l915(e)(2)(E) is not appropriate unless it appears beyond doubt that plaintiff can
prove no set of facts in support of his claim that would entitle him to relief and that rule applies
with particular force where plaintiff alleges civil rights violations or where complaint is
submitted pro se. Lewis v. Gallivon, 315 F Supp 2d 313 (WD NY 2004). Under 28 USCS §
1915 test for determining action is frivolous or without merit is whether plaintiff can make
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rational argument on law or facts support of claim. Collins v. H Eadlcy, 603 E.2d 824 (10th
Cir. 1979). In determining possible frivolous nature of complaint under 28 US CS § 1915(d)
[re-designated as (e)], complaint will be construed liberally. [bdrm v. Glivarri, 587 F.2d 677
(5th Cir. 1979).
11. Fiairrtitfs child is definitely entitled in law and in fact tothe relief reqnmtal whether or
not her father is accused of a crime by the Connor of Ottawa, Michigan.
12. So long as the possibility of entitlement to relief is not foreclosed, a complaint may not be
dismissed sua sponte under 28 U.S.C. §1915.
13. The United States Court of Appeals for the Third Circuit served plaintL’f s Notice of Appeal
upon the Office of the Attorney General of the State of Delaware sua spears, without the said
defendant having been served with process or having appeared in the ease below.
14. Service of process upon defendants in foreign countries may take a long time. adding further
delay to a case that is likely to be allowed to proceed upon appeal.
WHEREF ORE, Plaintiff respectfully requests that the Court:
A. Stay its August 8, 2007 Order pending appeal;
B. Serve the defendants with process pursuant to its Order of April 16. 2007 Order; and
C. Grant any other relief that the Court deems appropriate.
/7i‘/g ;’ Dated: September 10, 2007
Emmanuel N. Lazatidis
Lazaridis ~ Kortsidalds
Smyrnis 14
71201 Heraldion, Crete
GRECE
Tel: +30 281 033 3346
Fax: +01 484 631 0508 (USA)
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