Kim, Margaret Vs. Bunuel, Diego

JUDGMENT on Defendants, Diego Bunuel 12(b) motion to dismiss against Plaintiff(s) Margaret Kim. It is ORDERED and ADJUDGED: The complaint is dismissed in its entirety. See Endorsement on the Defendant's Motion to Dismiss, (Docket No. 14), Dated 4/28/21.

General correspondence regarding two decisions submitted by Nathalie K. Saloman

Plaintiff Margaret Kim's EMERGENCY Motion to Admit Attorney to Practice Pro Hac Vice

Endorsement on Motion to dismiss all counts (#14.0): ALLOWED April 28, 2021 (Hearing- 4/26/21)- The complaint, filed 7/13/20, alleges three incidents, two, 5/16/17 and 6/5/17, occurring in Paris, France, and one, 7/13/17, occurring in Dukes County. There is no jurisdiction for the Paris incidents. The plaintiff concedes there are no Massachusetts cases that would allow application of the continuing violation doctrine to the facts alleged in the complaint. Accepting the allegations of the complaint as true, together with reasonable inferences drawn therefrom, the motion to dismiss is allowed with respect to the 5/16/17 and 6/5/17 incidents occurring in Paris, France, pursuant to MRCP 12(b) (1), (2), and (6), as there is no personal jurisdiction, they are time barred, and the complaint fails to state a claim upon which relief can be granted. With respect to the G.L. c. 223A, § 5 forum non conveniens motion, considering the specific facts of the proceeding before me, including, but not limited to, that the 7/13/17 incident in Dukes County involves a plaintiff who then resided in Paris, France, and now resides in California, and a defendant who then and now resides in Paris, France; that the parties have been involved in continuous divorce proceedings in Paris, France, since at least March 2018 and have engaged in motion and appellate practice that culminated in a temporary of order of custody of parties' children with the defendant, and the plaintiff having the right of visit; that what followed was a complaint to the Edgartown Police resulting in a 2020 criminal complaint against the defendant and an arrest warrant; that the defendant has significant interests in avoiding to have to choose between his liberty and waiving his Fifth Amendment rights, or effectively conceding the defense of the claim against him in the civil matter by invoking such rights and facing the resulting inference; and that the affidavits before me from attorneys in France show an alternative forum, albeit not the one where the plaintiff wants to be; the court finds that there is an alternative forum in which justice may be had, i.e. where the parties are already involved in litigation, Paris France, and that the balance of private and public concerns strongly favors allowance of the motion. The court declines to stay this action because of the prejudice, the potential of extended, if not unlimited, delay, and instead allows the defendant's motion to dismiss. Judge: Gildea, Hon. Mark

Endorsement on Motion to Admit Attorney to Practice Pro Hac Vice. Motion (#18.0): ALLOWED Judge: Gildea, Hon. Mark

Diego Bunuel's Reply Memorandum in support of Motion to Dismiss Plaintiff's Complaint

Opposition to paper # paper # 14 filed by Diego Bunuel

Defendant's Notice of intent to file motion to Dismiss Applies To: Salomon, Esq., Nathalie K (Attorney) on behalf of Bunuel, Diego (Defendant)

Affidavit of compliance with Superior Court Rule 9A Applies To: Salomon, Esq., Nathalie K (Attorney) on behalf of Bunuel, Diego (Defendant)

Defendant Diego Bunuel's Motion to dismiss all counts Applies To: Salomon, Esq., Nathalie K (Attorney) on behalf of Bunuel, Diego (Defendant)

Diego Bunuel's Memorandum in support of Motion to Dismiss Plaintiff's Complaint Applies To: Salomon, Esq., Nathalie K (Attorney) on behalf of Bunuel, Diego (Defendant)

Rule 9A notice of filing Applies To: Salomon, Esq., Nathalie K (Attorney) on behalf of Bunuel, Diego (Defendant)

Plaintiff Margaret Kim's Submission of return of service of the Summons and complaint in the above action on defendant Diego Bunuel in France February 17, 2021. (Received copy February 26, 2021 by e-mail)

Endorsement on Request for Default Rule 55 (a). Request (#4.0): ALLOWED Default to enter per M. R. Civ. P Rule 55 (a), by T. George Davis, Clerk Judge: Davis, T. George

Service Returned for Defendant Bunuel, Diego: Service made at last and usual by Baliff Arnaud de Montembert d'Esse in Paris. (In French with translation with notarized certificate of accuracy).

Attorney appearance On this date Nathalie K Salomon, Esq. added for Defendant Diego Bunuel

Document: A Default order Mass. R. Civ. P. 55(a) was generated and sent to: Plaintiff, Attorney: Ernest Douglas Sederholm, Esq. Miller Sederholm Law Office 3 Mariners Landing PO Box 2356, Edgartown, MA 02539 & Defendant: Diego Bunuel 8, Rue Mansart 75009 Paris, France.

Rule 9A list of documents filed. Applies To: Salomon, Esq., Nathalie K (Attorney) on behalf of Bunuel, Diego (Defendant)

Endorsement on Request to Request a Forty Five (45) day Extension of the Deadline to File a Motion for Assessment of Damages and Default Judgment through and including January 26, 2021. Request (#6.0): DENIED See Order Vacating Default Order.

ORDER: Vacating Default Order Judge: Gildea, Hon. Mark

Plaintiff Margaret Kim's Request for forty five (45) day extension of the deadline to file a motion for an assessment of damages and default judgment through January 26, 2021.

Original civil complaint filed.

Margaret Kim's request for Default 55(a) Applies To: Bunuel, Diego (Defendant)

Plaintiff Margaret Kim's Notice of attorney withdrawal of appearance by E. Douglas Sederholm. (Electronically filed).

Attorney appearance electronically filed.

Appeal entered in Appeals Court on 02/24/2022 docket number 2022-P-0141

Notice of appeal filed. Applies To: Kim, Margaret (Plaintiff)

Margaret Kim's Memorandum in support of Motion for Reconsideration of the April 28, 2021 Order on Defendant's Motion to Dismiss Plaintiff's Complaint and to Amend the Judgment. Applies To: Sederholm, Esq., Ernest Douglas (Attorney) on behalf of Kim, Margaret (Plaintiff)

Plaintiff Margaret Kim's Request for Transcripts Ordered on 11/9/21

Diego Bunuel's Reply Memorandum in opposition to Plaintiff's Motion for Reconsideration Applies To: Sederholm, Esq., Ernest Douglas (Attorney) on behalf of Kim, Margaret (Plaintiff)

Rule 9A notice of filing Applies To: Sederholm, Esq., Ernest Douglas (Attorney) on behalf of Kim, Margaret (Plaintiff)

Affidavit of compliance with Superior Court Rule 9A Applies To: Sederholm, Esq., Ernest Douglas (Attorney) on behalf of Kim, Margaret (Plaintiff)

Rule 9A list of documents filed. Applies To: Sederholm, Esq., Ernest Douglas (Attorney) on behalf of Kim, Margaret (Plaintiff)

Stipulation of dismissal with Prejudice as to Margaret Kim, Diego Bunuel's original complaint

Thomas J Ford, Esq., Joshua M Daniels, Esq.Diego Bunuel's Other - Memorandum in support of of Dismissal on Forum Non-Conveniens Grounds

ORDER: This matter is stayed pending further order of the court. A Status Conference shall be held on November 16, 2023 at a time to be determined by the Clerk.

Endorsement on Motion to Continue (#39.0): ALLOWED An objection by the defendant (not his counsel) to a continuance of a court appearance (that the court gave short notice of) so as to allow a parent to go on a pre-planned vacation with his family is difficult to comprehend. Such an objection reminded me of the theme of Law Day in Rhode Island on May 5, 2023, being Cornerstones of Democracy: Civics, Civility, and Collaboration. In an article published by the American Bar Association on September 18, 2014, Jayne R. Reardon wrote: ¿The concept of civility is broad. The French and Latin etymologies of the word suggest, roughly, ¿relating to citizens.¿ In its earliest use, the term referred to exhibiting good behavior for the good of the community. The early Greeks thought civility was both a private virtue and a public necessity, which functioned to hold the state together. Some writers equate civility with respect. So, civility is a behavioral code of decency or respect that is the hallmark of living as citizens in the same state.¿ The motion is allowed. Plaintiff¿s counsel shall communicate with the court upon his return from vacation, but not before, as to a new date that works for both counsel. Honorable Mark C. Gildea, J. Applies To: Moriarty, Esq., Robert D (Attorney) on behalf of Kim, Margaret (Plaintiff); Ford, Esq., Thomas J (Attorney) on behalf of Bunuel, Diego (Defendant); Daniels, Esq., Joshua M (Attorney) on behalf of Bunuel, Diego (Defendant)

Plaintiff Margaret Kim's EMERGENCY Motion to Continue Applies To: Kim, Margaret (Plaintiff); Bunuel, Diego (Defendant); Moriarty, Esq., Robert D (Attorney) on behalf of Kim, Margaret (Plaintiff); Ford, Esq., Thomas J (Attorney) on behalf of Bunuel, Diego (Defendant); Daniels, Esq., Joshua M (Attorney) on behalf of Bunuel, Diego (Defendant)

Defendant Diego Bunuel's Notice of withdrawal of Stephen C. Reilly Nathalie K. Salomon of Fitch Law Partners, LLP

JUDGMENT/ORDER after Rescript: The original judgment (#20.0) is Vacated in part, Affirmed in part. So much of the judgment that dismisses claims that are based on allegations that the husband raped the wife on Martha's Vineyard is vacated, and the matter is remanded for further proceedings consistent with the opinion of the Appeals Court. In all other respects, the judgment is affirmed. *Copies mailed to counsel of record on 3/8/23 by USPS.

Attorney appearance electronically filed.

Notice of Entry of appeal received from the Appeals Court Notice of Rescript

Affidavit of Margaret Kim In Support of Motion for Reconsideration Applies To: Sederholm, Esq., Ernest Douglas (Attorney) on behalf of Kim, Margaret (Plaintiff)