Friday, May 1, 2015
[Mexico] [Federal & State Judicial Remedies][Temporary Restraining Order]
In Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.) Petitioner filed a Petition Under the Hague Convention Seeking Return of the parties Child to Petitioner in Mexico along with a Motion for an Ex Parte Temporary Restraining Order
According to the petition Petitioner was L.D.M.'s mother, and Respondent his father. They were both citizens of Mexico having been married in Oaxaca, Mexico. Petitioner and Respondent had two other children, both of whom resided with Petitioner in Mexico. Petitioner and Respondent moved to the United States from Mexico in 2004, along with their oldest child. Petitioner gave birth to L.D.M. in Statesboro, Georgia, on October 15, 2006. In May 2010, Petitioner and Respondent agreed that Petitioner would return to Mexico with L.D.M. On May 26, 2010 Respondent signed a notarized statement acknowledging Petitioner's return to Mexico with L.D.M. In June 2010, Petitioner, L.D.M., and her other two children went to Mexico. Respondent stayed in the United States, having promised to send money to his family and to return to Mexico within one year. Respondent never returned to Mexico, and stopped contacting Petitioner or sending any financial support soon after Petitioner and her children arrived in Mexico. From June 9, 2010 until March 15, 2014, L.D.M. resided continuously with Petitioner at their residence in Mexico. During this time, Petitioner provided financial and other support for L .D.M. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him in the United States. Petitioner agreed to let L.D.M. visit his father. At that time, L.D.M. was continuously enrolled in a primary school in Mexico. On March 15, 2014, L.D.M. flew from Mexico to the United States. In April 2014, Respondent asked Petitioner if L.D.M. could stay with him in the United States until the end of the school year. In June, 2014, Petitioner asked Respondent to return L.D.M. to Mexico so that L.D.M. could begin his next school term. Respondent refused to return L.D.M. to Mexico. Despite repeated requests to have L.D.M. returned to Mexico, Respondent has not returned L.D.M. to Mexico. Petitioner believed that L.D.M. was currently residing under the care of Respondent, his girlfriend, or his sister in Statesboro, Georgia, and that Respondent was not a citizen of the United States and was not lawfully present in the United States. Petitioner filed the petition on April 16, 2015.
The district court observed that Injunctive relief of the nature sought by Petitioner "is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking such injunctive relief must make four showings: "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."
The court found that Petitioner had shown a likelihood of success. Petitioner had shown that she had custody rights over L.D.M., and was exercising those rights at the time of his retention in Statesboro, because L.D.M. had resided continuously with her and his siblings in Mexico from June 9, 2010 until March 15, 2014 (Petition 2 19) and Petitioner has provided L.D.M.'s financial support for most or all of his life. Petitioner had also shown through her complaint that Respondent retained L.D.M. in Statesboro in violation of Petitioner's custody rights by first agreeing to keep L.D.M. only until the end of the 2014 school year , but then refusing to return L.D.M. to Mexico after the school year had ended. Because Petitioner had shown that she held and was exercising rights of custody over L.D.M. at the time he was wrongfully retained by Respondent in Statesboro, Georgia, Petitioner had shown that she had a likely success on the merits of her Petition under the Hague Convention.
The court stated that before the Court may issue an injunction, the Plaintiff must show that irreparable harm is not merely possible, but likely. Winter, 555 U.S. at 22.
"An injury is 'irreparable' only if it cannot be undone through monetary remedies."
United States v. Jenkins, 714 F.Supp.2d 1213, 1221 (S.D.Ga.2008). Petitioner alleged that Respondent, a citizen of Mexico, was not lawfully present in the United States. Because Respondent was not lawfully residing in the United States, it was likely that
an Order to appear in federal court for a full hearing on Plaintiff's motion for a
preliminary injunction will incentivize Respondent to flee the Court's jurisdiction with
L.D.M. If Respondent were to remove L.D.M. from the Court's jurisdiction, Petitioner
would be denied her opportunity to seek L.D .M.'s return to Mexico under the Hague
Convention. The likely harm to Petitioner, then, was exceedingly high, as she may not be able to continue a relationship with her son absent an injunction. Furthermore, an ex parte Order, issued without notice to Respondent, was appropriate under these circumstances due to the nature of the irreparable harm that Petitioner feared. Because there was a risk that Respondent may flee the Court's jurisdiction with L.D .M. when he learned of Petitioner's Petition under the Hague Convention, it was proper for the Court to grant Petitioner's request for the temporary restraining order rather than require Petitioner to notify Respondent of her Petition without an enforceable injunction in place at the time of such notification. Therefore, Plaintiff had shown that irreparable harm will likely ensue if the Court does not issue a temporary restraining order.
The Court weighed the equities and found that several equitable considerations weigh in Petitioner's favor. Petitioner had certain custody rights over L.D.M. under the laws of Mexico. The provisions of the Hague Convention and the ICARA were the only legal recourse available to her under the present circumstances, where her son had been wrongfully retained in Statesboro, Georgia in violation of her custody rights. If Respondent were to be notified of Petitioner's Petition without a legally enforceable order enjoining him from removing L.D.M. from the Court's jurisdiction, Petitioner's only available recourse for the return of her son would be thwarted. The stakes for Petitioner, then, were high. Very few equitable factors weighed in favor of Respondent. The temporary nature of the injunction would not greatly inhibit his rights or ability to travel, as the requested injunction is limited to keeping L.D.M. within this Court's jurisdiction for less than two weeks. The requested injunction would present little, if any, inconvenience or harm to Respondent. Upon weighing the above factors, the Court concluded that the balance of the equities favored Petitioner insofar as the court considered her request for an ex parte temporary restraining order.
The Court found that the public has an interest in seeing the custody rights of parents residing in other nations enforced in the United States' courts through the Hague Convention and ICARA. The Court concluded that the public interest in granting a temporary restraining order favored Petitioner.
The court granted Petitioner's request for a temporary restraining
order. The Court enjoined Respondent from allowing L.D.M. to be removed from the Southern District of Georgia pending a hearing on Petitioner's request for a preliminary injunction and was directed to bring to the preliminary hearing on May 6 any passports in his and/or L.D.M.'s name. It directed that pursuant to Federal Rule of Civil Procedure 65(c), the Petitioner must post bond with the Clerk of the U.S. District Court in the amount of $1,000.
Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) [Mexico] [Federal & State Judicial Remedies][Testimony by Video]
In Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) the Petitioner, a citizen of Mexico currently residing in Cosolapa, Oaxaca, Mexico, brought the federal court action to secure the return of his two children, F.C.G., his nine-year old son, and A .C.G., his two-year-old son. Because of his inability to be present in Court to testify, Petitioner filed a Motion, requesting the Court permit him and Mr. Monterosas to testify, if necessary, by Skype or telephone under Rule 43(a). As good cause for permitting him to do so, Petitioner argued that he and Mr. Monterosas cannot travel because: they likely would be unable to obtain a passport or visa to travel to the United States, and; both were financially unable to travel to the United States. Petitioner was granted leave to proceed in the District Court without prepaying costs in part because he makes roughly ten-thousand dollars per year, below the poverty guidelines. Petitioner argued that appropriate safeguards would be present to ensure compliance with the mandates of Rule 43(a), such as his accurate identification by consular officials, his seclusion during the testimony to prevent outside influence, and his willingness to arrive early to test the technology involved so as to avoid interruptions during the trial.
The District Court granted the motion. It observed that Rule 43(a) permits a court to take remote testimony "[f]or good cause in compelling circumstances and with appropriate safeguards." Courts within this jurisdiction have applied Rule 43(a)
to allow parties and witnesses to testify remotely. Courts applying Rule 43(a) have established several situations justifying a court in permitting remote testimony. One such situation is the inability to obtain a visa to enter the country. See, e.g., El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C.Cir.2007) (finding remote testimony from Egypt appropriate when the witness could not obtain a visa to enter the United States); Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 (E.D.N.Y.2010) (testifying from London because of the inability to obtain a visa), aff'd, 401 F. App'x 567 (2d Cir.2010). Other justifications include the burden of international travel, e.g., Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D.Md.2010),FN3 and even the impact that traveling will have on one's business, e.g., Dagen v. CFC Grp. Holdings Ltd, No.
00 CIV. 5682, 2003 WL 22533425, at *1 (S.D.N.Y. Nov. 7, 2003).
Coupled with the general relaxation of procedural rules to promote conformity with the overarching goals of the convention, i .e., the expedient return of the children, sufficient cause existed for the Court to grant the Parties' request. It found that Petitioner and Mr. Monterosas were likely unable to obtain a visa, both for reasons outside of their control and due to their indigent status. As explained by an experienced immigration attorney who submitted a declaration in response to Petitioner's first request to testify remotely, Petitioner would be required to travel to the nearest consular office to apply for a visa. Once he arrived and paid the application fee, there is no guarantee that he would have received a visa. In fact, the attorney opined that it was likely that Petitioner would be denied a visa outright because of his limited financial resources. Furthermore, because Petitioner did not have a valid passport, he would not be able to even apply for the visa. Therefore, the Court found Petitioner and Mr. Monterosas' inability to obtain a visa and their financial inability to travel satisfied the "good cause in compelling circumstances" to permit their testimonies by Skype or telephone under Rule 43.
The court found that the Parties had also shown that appropriate safeguards were in place. Fed. Rules Civ. P. 43(a). The advisory committee's notes to Rule 43(a) suggest that appropriate safeguards should be in place to ensure: (1) Accurate identification of the witness; (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. Several examples of procedures used to satisfy the rule include: requiring that a notary identify the witness and swear that witness in remotely. Mission Capital Works, Inc. v. SC Rests., Inc., No. C-07-1807, 2008 WL 5100313, at *1 n. 12 (W.D.Wash. Dec. 3, 2008); ensuring that the witness is alone in the room and has been provided with the documentary evidence in advance. Scott Timber, Inc. v. United States, 93 Fed. Cl. 498, 501 (Fed.Cl.2010); and requiring the movant to pay all costs associated with the remote testimony and requiring that it be tested with the Court's IT personnel prior to the trial it which it is used. Monserrate v. K .K. Mach. Co., No. 10-3732, 2013 WL 1412194, at *4 (E.D.N.Y. Apr. 8, 2013).
The court directed that the following procedural safeguards be in place to ensure that Petitioner and Mr. Monterosas' remote testimony will satisfy Rule 43(a): “Petitioner and Mr. Monterosas will report to the Foreign Relations Secretary's local office in Cordoba, Veracruz, Mexico, on May 11, 2015, and May 12, 2015, by 8:30 AM EST; When at the appropriate local office, Petitioner and Mr. Monterosas will provide sufficient documentation to a consular official who will verify their identities with the Court prior to their testimony; Petitioner and his counsel will troubleshoot any problems with the technology in advance of the trial, and will work with the translator and Court/Consular staff to ensure that he and Mr. Monterosas can be heard and understood; Petitioner and Mr. Monterosas will testify separately, in a closed room, free of any outside influence (both in-person and through other technological means) on their testimonies; All documentary evidence presented to Petitioner and Mr. Monterosas will be marked prior to the trial and provided to them to facilitate their testimony; and Petitioner (through counsel) will pay any costs associated with the remote testimony.”
In Pliego v. Hayes, 2015 WL 1893426 (W.D.Ky.) the court granted Petitioner’s request for an Order directing that the parties' minor child be returned to Turkey. The petitioner filed a motion for attorneys fees requesting attorney's fees of $150,182.85. This include: attorney Rebecca McKelvey's 157 hours, billed at $285 and $295 ($47,082.50); attorney Brenton Lankford's 170.5 hours, billed at $250 and $260, ($47,692); Pliego's state court counsel Stephanie Ritchie's 22.10 hours, billed at $200 ($4,420); two paralegals, 182.61 hours billed at $140 ($30,955); for a total of $130,150.00. Additionally, the petitioner requested his expenses to attend trial ($1,089.88 for petitioner's airline ticket; $850.89 for his mother's airline ticket; $882.37 for hotel; $162.36 for rental car, taxi, and parking; and $317.03 for meals); expenses for the return of the child ($1,509.52 for Petitioner's airline ticket plus fees for change to ticket; $1,775.12 for airline ticket for the child; $1,906.51 for hotel; $971.79 for rental car; $63.26 for taxi; $248.00 for parking; and $187.04 for meals); trial expenses ($383.25 for deposition transcripts; $2,500 for expert witness fee; and $532.64 for translation/interpreter fees) as well as $500 for supervision fee for visitation with the child; a $481.00 service of process fee; and $5,671.75 for the attorney affidavit of Rebecca McKelvey.
In her response to the motion, the respondent argued that she was currently in Turkey seeking custody of her son, and her visa did not allow her to work. She added
that, "[e]ven prior to traveling to Turkey, [the Respondent's] finances were severely
constrained. She worked part-time at a library, making $10.25 dollars per hour. She
resided with her mother, and relied on financial help of her family to support herself and
her son. She had no medical insurance, instead relying on Medicaid for herself and her
son....".When the Respondent lived abroad with the Petitioner, she was a stay-at-
home mother and the Petitioner was the family's sole provider. The Respondent stated
that, "[o]ther than a single $1,000 payment, [the Respondent] has received no child
support or financial assistance from [the Petitioner] since April 2014. This is despite the
fact that [the Petitioner] earns the equivalent of over $159,000 USD a year, in salary
alone, along with numerous savings accounts and substantial investments.... The Respondent argued that she did not have the assets or income to pay the Petitioner's attorney's fees. She owned no real property. She did not own an automobile. She had no investments and no savings. A judgment awarding legal fees to the Petitioner could never be satisfied by her, and it would prevent her from supporting her child for years to come." She also argued that the fees were excessive, and also that certain fees should not be included, such as costs for Petitioner's state court counsel, visitation expenses, meals, and airline change fees due to the child's illness.
The district court observed that where the attorney's documentation is inadequate, or the claimed hours are duplicative or excessive, the court may reduce the award accordingly. Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 972 (N.D . Ohio 2008)." ICARA gives courts the discretion to reduce or even eliminate a respondent's obligation to pay a prevailing petitioner's attorney's fees and costs where such an award "would be clearly inappropriate." 42 U.S.C.§ 11607(b)(3).
The Court observed that some charges-including meals and hotels, and state court counsel-seemed excessive but it did not question the accuracy of the documented time spent. However, it found that the Respondent was incapable of paying the amount of fees requested and that it would be "clearly inappropriate" to enter a judgment against her for the full sum. Based on a review of the information and supporting documents, the Court reduced the overall legal fees by 50%. Therefore, Petitioner was awarded $75,091.425 for reasonable attorney's fees and costs.