Romero-Mejia v. Ivers, 2013 WL 1412237 (E.D.Wash.) [Mexico] [Federal & State Judicial Remedies ][Temporary Restraining Order]

In Romero-Mejia v. Ivers, 2013 WL 1412237 (E.D.Wash.) Petitioner Martha Ivers Romero-Mejia ("Ms.Romero-Mejia") sought the return of her two minor children, CTIR and DSIR, to their home country of Mexico under the Convention.. Ms. Mejia-Romero made an ex parte motion requesting an order temporarily restraining Mr. Ivers from removing the children from this Court's jurisdiction pending a full hearing on the merits of the Petition Fearing that Mr. Ivers may abscond with the children to Canada if given advance notice of the proceedings, Ms. Romero-Mejia requested that the restraining order be issued ex parte under Federal Rule of Civil Procedure 65(b).

The court drew its facts from the Petition filed on April 3, 2013 which were accepted as true for purposes of this motion. Ms. Romero-Mejia was a citizen of  Mexico. Her husband, Mr. Ivers, was a citizen of the United States. Mr. Ivers and Ms. Romero-Mejia were married on December 31, 2003 in Tijuana, Baja California, Mexico. The couple had two children, CTIR and DSIR, who were born in 2006 and 2008, respectively. CTIR and DSIR resided with their parents in Mexico until the events at issue. On September 14, 2012, Mr. Ivers told Ms. Romero-Mejia that he planned to take CTIR and DSIR on a day trip across the border to the San Diego Zoo. Ms. Romero-Mejia went to work for the day with the understanding that Mr. Ivers and the children would return home around 10:00 p.m. Upon returning from work, Ms. Romero-Mejia discovered that the children's clothing and several other household items were missing. Concerned that their house had been robbed, Ms. Romero Mejia immediately called her husband on his cellular phone. During this conversation, Mr. Ivers informed Ms. Romero-Mejia that their marriage was beyond repair and that he was taking CTIR and DSIR to live permanently with him in Spokane, Washington. Ms. Romero-Mejia begged her husband to return with the children to Mexico, but to no avail.

The Court observed that the issuance of an ex parte temporary restraining order ("TRO") is governed by Federal Rule of Civil Procedure 65(b). Under Rule 65(b), a party seeking a TRO must establish the following: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if injunctive relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) an advancement of the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should continue in the form of a preliminary injunction. The Court found that the the issuance of a TRO was appropriate. Ms. Romero-Mejia has established a sufficiently high likelihood of success on the merits by alleging that her two children, over whom she has "rights of custody" under the laws of Mexico, were removed to the United States without her permission. Ms. Romero-Mejia further established that her children (1) were less than sixteen years old; (2) were residing with her in Mexico immediatelyprior to their removal; and (3) were currently residing with Mr. Ivers in Spokane.

Accordingly, Ms. Romero-Mejia appeared to be entitled to the requested relief under the Convention. There was also a sufficient likelihood of irreparable injury if the requested relief is not granted. According to the Petition, Mr. Ivers had family in Canada and may take the children there if not enjoined from doing so. Given that Mr. Ivers had already absconded with the children on one occasion, there wasreason to believe that he may do so again upon learning of Ms. Romero-Mejia's efforts to secure their return to Mexico. If this occurs, Ms. Romero-Mejia would be forced to restart the removal application process anew, thereby jeopardizing her ability to obtain timely relief under the Convention. See Convention, Art. 12 (imposing a one-year statute of limitations from the date of wrongful removal or retention). The Court found that injunctive relief is necessary to prevent this potential injury from occurring. For the same reasons, the Court found that issuance of this Order without notice to Mr. Ivers was appropriate. Fed.R.Civ.P. 65(b)(2). A balancing of the hardships also weighed in Ms. Romero-Mejia's favor. Prohibiting Mr. Ivers from removing CTIR and DSIR from the Eastern District of Washington without the Court's approval-at least until he could be heard on the matter-was not a burdensome condition. Conversely, the hardship that Ms. Romero-Mejia would face if the requested relief were not granted was substantial. Finally, the Court found that an order barring Mr. Ivers from removing the children from this jurisdiction would advance the public interest. In implementing the Convention, the United States Congress found, inter alia, that "the international abduction... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." The Court concluded that Ms. Romero-Mejia was entitled to an order temporarily restraining Mr. Ivers from removing CTIR and DSIR from the Court’s jurisdiction. Respondent was further ordered to show cause why the relief requested in the Verified Petition for Return of Children should not be granted, and the courter directed that a copy of the order, along with a copy of the Verified Petition for Return of Children, shall be promptly served upon Respondent.