United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Yoselin Yessenia
Morales Alvarado's Motion to Dismiss for Failure to State
a Claim, (Doc. No. 8), and the Magistrate Judge's
Memorandum and Recommendation (“M&R”), (Doc.
No. 10), recommending the Court deny Defendant's Motion.
The parties have not filed objections to the M&R and the
time for doing so has expired. Fed.R.Civ.P. 72(b)(2).
party has objected to the Magistrate Judge's statement of
the factual and procedural background of this case.
Therefore, the Court adopts the facts in the M&R as
Accepting the allegations of the Petition, Doc. 1, as true,
Petitioner and Respondent were married on December 15, 2012
in La Libertad, El Salvador. They have a four year old son,
V.S.G.M. (the “Child”). Petitioner asserts that
on January 8, 2017 Respondent wrongfully removed the Child
from their familial residence in San Salvador, El Salvador
and is now residing with the Child in Charlotte along with
her mother, Carmen Lucinda Alvarado, and her brother David
On August 25, 2017, Petitioner filed the instant Petition
pursuant to the Convention on the Civil Aspects of
International Child Abduction (the “Hague
Convention”), signed by the United States on July 1,
1988, and its implementing statute, the International Child
Abduction Remedies Act (“ICARA”), 22 U.S.C.
§ 9001, et. seq.
Respondent moves to dismiss the Petition pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
See Doc. 8. Respondent argues that (1)
“[t]here is no Court Order awarding the Custody of the
minor child . . .” (2) “the minor child at issue
was living with [Morales] when she left El Salvador” .
. . and (3) “the Articles of Codigo . . . cited on the
Plaintiff's Petition for the return of the minor child
does [sic] not automatically award custody of the minor
child. . . .” Id. at ¶ 1.
(Doc. No. 10 at 1-2).
STANDARD OF REVIEW
district court may assign dispositive pretrial matters,
including motions to dismiss, to a magistrate judge for
“proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) & (B). The Federal
Magistrate Act provides that a district court “shall
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.” Id. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(3). However, “when objections to
strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). De novo review is also not required
“when a party makes general or conclusory objections
that do not direct the court to a specific error in the
magistrate judge's proposed findings and
recommendations.” Id. Similarly, when no
objection is filed, “a district court need not conduct
a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.'” Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72, advisory committee
Rule 72(b) of the Federal Rules of Civil Procedure, a
district court judge shall make a de novo determination of
any portion of an M&R to which specific written objection
has been made. A party's failure to make a timely
objection is accepted as an agreement with the conclusions of
the Magistrate Judge. See Thomas v. Arn, 474 U.S.
140, 149-50 (1985). No objection to the M&R having been
filed, and the time for doing so having passed, the parties
have waived their right to de novo review of any issue
covered in the M&R. Nevertheless, this Court has
conducted a full review of the M&R and other documents of
record and, having done so, hereby finds that the
recommendation of the Magistrate Judge is, in all respects,
in accordance with the law and should be approved.
Accordingly, the Court ADOPTS the
recommendation of the Magistrate Judge as its own.
Magistrate Judge recommended, the parties' standing under
the Hague Convention will be resolved in an evidentiary
hearing previously scheduled for April 12, 2018.