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Monday, September 17, 2018

Cocom v Timofeev, 2018 WL 3958129 (D. South Carolina, 2018)[Belize ] [Federal & State Judicial Remedies] [Temporary Restraining order]

          In Cocom v Timofeev, 2018 WL 3958129 (D. South Carolina, 2018) the district court granted Raquel Margarita Cocom’s (“Mother”) emergency ex parte motion for a temporary restraining order (“TRO”) against her Child’s father, Andrey Timofeev (“Father”), and grandmother, Irina Timofeev (“Grandmother”), as part of her efforts to have her child, V.A.T. (“Child”) returned to her in Belize.

          According to the Petition and TRO motion, Mother and Father met in Belize and were in a relationship from April 2009 until Father and Child left for the United States on November 5, 2017. Mother gave birth to Child on November 20, 2015 in Orange Walk District, Belize, after which Mother raised the Child in Belize with some assistance from Father. However, Father did not live full-time in the same house as Mother, Child, and Mother’s ten-year-old child from a previous relationship, J.J.R. Shortly after Child’s birth, Father told Mother that he wished to move to the United States to join Grandmother and his stepfather. Mother refused to agree to move to the United States unless the entire family, including J.J.R., moved together legally. Eventually, Mother and Father agreed that they would obtain visas to migrate to the United States together, but Father then changed plans and applied only for a visa for himself and Child. Unknown to Mother, Grandmother petitioned for Father to obtain a green card. On November 5, 2017, Father told Mother that Grandmother had bought tickets for Father and Child to fly out of Belize later that day. He assured Mother that he was only going to travel to South Carolina to visit his family for two weeks, after which he would return to Belize with Child, would marry Mother, adopt her son, and then they would all travel to the United States legally as a family. Two weeks later when Child did not return home, Mother contacted Father and asked him to bring Child home to her immediately. Father responded that Child would be staying in the United States. Immediately afterwards, on November 20, 2017, Mother filed her Application under the Convention. Belizean officials completed the application on or about January 26, 2018, after which it was transmitted to the United States Department of State. Mother then obtained pro bono counsel to locate Child and to file this Petition. Interpol in Washington, D.C. confirmed on June 26, 2018 that Child is now living with Father and/or Grandmother in Georgetown, South Carolina.

          Mother’s petition before this court, filed on August 14, 2018, alleged wrongful detention of Child, in violation of the Convention and 22 U.S.C. §§ 9001, et seq. ECF No. 1. On August 14, 2018, Mother also filed an ex parte emergency motion for a TRO.
The district court found that a party ty may move for a preliminary injunction or a TRO under Federal Rule of Civil Procedure 65. A Temporary Restraining order may be issued without notice to the adverse party or its attorney if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. Fed. R. Civ. P. 65(b). “The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a” longer period. Id. The movant must also give the court “security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” 

          A temporary restraining order or a preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see also U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006). To obtain a TRO, a Plaintiff must show: (1) that she is likely to succeed on the merits, (2) that she is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in her favor, and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20. A Plaintiff seeking injunctive relief must show that all four of the Winter factors support granting relief. See id.; see also Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (noting that the Plaintiff “bears the burden of establishing that each of these factors supports granting the injunction” (quoting Technical Publishing Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984))).

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