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Friday, June 17, 2016

Berezowsky v Rendon Ojeda, 2016 WL 3254054 (5th Cir.2016)[Mexico] [Re-return order]

  In Berezowsky v Rendon Ojeda, 2016 WL 3254054 (5th Cir.2016) Michelle Gomez Berezowsky filed a Hague Convention petition arguing that Rendon wrongfully removed PARB from his habitual residence (purportedly Mexico). The district court ruled in her favor and ordered PARB returned to Berezowsky. Rendon complied, and Berezowsky, with the district court’s permission, left for Mexico with PARB. Rendon appealed, asking that PARB be returned to him. In August 2014 the Fifth Circuit reversed the district court’s judgment (Ojeda 1). It concluded, in relevant part, that “[f]or the reasons stated in this opinion we VACATE the district court’s order and REMAND with instructions to dismiss.” The accompanying mandate stated that “[i]t is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.” On remand, the district court succinctly “ORDERED THAT the [District] Court’s Order for the return of the child [to Berezowsky] ... is VACATED and this action is DISMISSED.” Rendon timely filed a Rule 59(e) motion to amend the judgment, asking the court to order Berezowsky to return PARB to him in light of the dismissal. The district court denied the motion, and Rendon again appealed. 

       The Fifth Circuit affirmed. It found no binding precedent addressing how a mandate “vacat[ing] ... and remand [ing] with instructions to dismiss” should be parsed.  It concluded that  Ojeda  neither required nor forbade a re-return order. The Court did not  decide in that case whether or not a re-return order was warranted. Because a lower court “is free to decide matters which are left open by the mandate,” the decision to issue or deny a re-return order was therefore the district court’s. The district court decided not to issue a re-return order.  It subsequent refusal to amend the judgment (which provided the basis of the present appeal) is reviewed for abuse of discretion, and amendment is appropriate if the controlling law has changed, if new evidence is available, or if the initial decision was manifestly erroneous as a matter of law or fact.  Rendon did not allege new evidence or a change in controlling law, and the district court’s decision was not legally or factually erroneous. The law of the case did not compel a re-return order, and the court reasonably could have concluded on these facts that the equities did not favor a re-return order. Citing these concerns, the Ninth Circuit recently refused to issue a re-return order after overturning a district court’s Hague Convention decision, in what appears to be the only federal appellate case addressing the propriety of such an order. In re A.L.C., 607 F. App’x 658, 663 (9th Cir. 2015). The Fifth Circuit affirmed. It held that the district court did not abuse its discretion in refusing to issue a re-return order. 

Cefaliello v Serpico, 2016 WL 3256972 (N.D. Ohio, 2016)[Italy] [Federal & State Judicial Remedies] [Motion to dismiss denied]

In Cefaliello v Serpico, 2016 WL 3256972 (N.D. Ohio, 2016) the district court denied the Rule 12(b)(6) motion to dismiss. The parties had a child in Italy who was born on January 26, 2012. In November 2013, the parties moved to  Ohio. Plaintiff did not obtain a green card and  was required to leave the country in May 2014. Defendant and the minor child did not return to Italy.  On February 25, 2016, the state court granted Defendant an uncontested divorce which allowed Plaintiff visitation rights with the minor child. On April 15, 2016, Plaintiff filed this Hague Convention action. The district court observed that ICARA provides that federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention and ICARA: 42 U.S.C. § 11603(g); Holder v. Holder, 305 F.3d 854, 864-65 (9th Cir. 2002). No Hague Petition was adjudicated by the state court, nor was there any indication that the provisions of the Hague Convention were considered when Plaintiff’s custody rights were determined. As such, the state court divorce decree was not entitled to preclusive effect.