The Lorenz family, after some significant litigation, is proceeding towards a final resolution in the Hague Abduction Convention suit filed by Ms. Lorenz in the U.S. District Court for the ED of Michigan. As a preliminary matter, Ms. Lorenz filed a motion to waive “affirmative defense” and to prohibit the children from being interviewed as part of the case. On July 29, 2021, Magistrate Judge Kimberly Altman recommended that Ms. Lorenz’s motion be denied.
Ms. Lorenz filed her Hague Abduction Convention return suit on November 25, 2020. She alleged that Mr. Lorenz took their children from Germany to Michigan for a visit in July 2020, and was scheduled to return on September 5, 2020, but he never did. In this instant motion, she argued that Mr. Lorenz never raised the “affirmative defense” of a mature child’s objection to being returned to their habitual residence in his first responsive pleading or at any other time thereafter. Mr. Lorenz’s answer stated that the children wanted to live in the United States.
Pursuant to FRCP 8(c)(1), in a responsive pleading, a party must affirmatively state any affirmative defense, and failure to timely plead such a defense may result in the waiver and exclusion of the defense from the case. While Mr. Lorenz did not specifically raise the mature child’s objection “defense” in his Answer, he did specifically reference it in his Motion to Dismiss, filed on April 1, 2021, and included specific detail about the alleged objections. Ms. Lorenz had been on notice for at least 3 months that Mr. Lorenz intended to raise the mature child’s objection in his case-in-chief, and therefore, she had sufficient time to have the children evaluated or hire any experts. There has been no prejudice to Mr. Lorenz’s failure to state the “defense” in his Answer.
On August 13, 2021, the Court adopted Magistrate Judge Altman’s R&R.