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Monday, September 30, 2019

Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019)[Honduras] [Federal & State Judicial remedies] [Default judgment] [Petition granted]

In Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019) after the Respondent or a licensed attorney for the Respondent failed to appear at the hearing on April 26, 2019, the Magistrate Judge issued a Report and Recommendation and recommended that default judgment be entered against Respondent that the child be returned to Honduras. The Report and recommendation were adopted and incorporated in an order by the district court. See Huete v Sanchez, 2019 WL 4195336 (E.D. Virginia, 2019).

Petitioner filed the Petition on December 4, 2018, for the return of his daughter (“Child”) to Honduras under 22 U.S.C. § 9001 et seq. The Petition alleged that Respondent, Child’s mother, removed Child from her home in Honduras and took her to Virginia without Petitioner’s consent. The Magistriate Judge observed that Rule 55 of the Federal Rules of Civil Procedure provides for default judgment when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” FED. R. CIV. P. 55(a). For a Court to render default judgment against a party, it must have both subject matter jurisdiction and personal jurisdiction. This Court had subject matter jurisdiction over this action pursuant to 22 U.S.C. § 9003(a), which provides that United States district courts shall have concurrent original jurisdiction of actions arising under the Hague Convention. Venue was appropriate in this district because although the Respondent was not a resident of the United States, she was located in the district. See 28 U.S.C. § 1391(c)(3) (stating that a defendant who is not a resident in the United States may be sued in any judicial district).

The Court pointed out tha Personal jurisdiction may be founded on either of two theories: general or specific jurisdiction. When “a suit does not arise out of the defendant’s activities in the forum state, the court must exercise general jurisdiction and the requisite minimum contacts between the defendant and the forum state are fairly extensive.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993). Those contacts must be “continuous and systematic.” See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); Saudi v. Northrop Grumman, 427 F.3d 271, 276 (4th Cir. 2005). The “paradigm” example of general personal jurisdiction is the individual’s domicile. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Conversely, when a suit arises out of the defendant’s activities with the forum state, then a court may exercise specific jurisdiction. See Federal Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 660 (4th Cir. 1989); Helicopteros, 466 U.S. at 414 n.8. In such a case, the contacts need not be so extensive, but “the ‘fair warning’ requirement inherent in due process still demands that the defendant ‘purposely directed’ its activities at the forum.” Federal Ins., 886 F.2d at 660 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). The Fourth Circuit has expressed due process requirements for asserting specific personal jurisdiction through a three part test in which it considers “(1) the extent to which the defendant purposefully availed himself of the privilege of conducting activities in the State; (2) whether the plaintiff’s claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009).

The Court found that it had general jurisdiction over Respondent because of her continuous and systematic contacts with Virginia. Though Respondent was not domiciled in Virginia because there was no evidence of attempts to obtain United States citizenship, she nevertheless resided in Virginia for the time being. Respondent had been residing in Virginia since March 2018, thereby rendering her minimum contacts with Virginia extensive. 

The Court also had specific jurisdiction over Respondent. First, Respondent has purposefully availed herself of the privileges of conducting activities in Virginia because she resided in the State. Second, Petitioner’s claims arose out of those activities directed at Virginia because Respondent removed Child from her home in Honduras and brought her to Virginia. Finally, the exercise of personal jurisdiction would be constitutionally reasonable because as a resident of Virginia, she had minimum contacts with the State. Since moving to Virginia, Respondent had a fair warning that her activities within the State would subject her to jurisdiction of Virginia. Accordingly, the Court found that it had personal jurisdiction over Respondent.

The Court found that substitute service was proper in this case. Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located ....” FED. R. CIV. P. 4(e)(1). Virginia law permits substitute service via posting if the party being served cannot be found at her usual place of abode and a family member who is sixteen years or older is not found at the individual’s place of abode. VA. CODE. ANN. § 8.01-296. According to the proof of service and statements made in Petitioner’s Supplemental Brief, it appeared that substitute service was proper.  Although the proof of service does not indicate multiple attempts at personal service prior to effectuating substitute service, Respondent acknowledged that she received the Summons and Complaint in December 2018 when she reached out to Petitioner and asked Petitioner to terminate this case. This acknowledgment was sufficient for service of process under VA. CODE. ANN. § 8.01-288, which provides that a process which has reached the person to whom it is directed within the time prescribed by law, shall be sufficient although not served or accepted. Respondent accepted service by acknowledging she received the Summons and Petition. Therefore, the Court found that service of process was proper.

The court found that both Petitioner and Respondent were citizens of Honduras and had Child, outside of marriage, on January 3, 2013, in Honduras. Child is under the age of sixteen. From January 2013 to June 11, 2016, Petitioner, Respondent, and Child lived together as a family in Honduras, but were not married. In June 2016, Petitioner and Respondent separated, and Respondent subsequently married someone else taking Child with her. Petitioner continued to support Child by paying for a nanny and school fees to attend a private school. Child also regularly spent the weekend with her father.  Sometime in March 2018, Child’s school informed Petitioner that Child had not attended school since March 6, 2018.  The school did not provide further information, so Petitioner attempted to contact Respondent, but was unsuccessful.  Petitioner then contacted Respondent’s family; however, Respondent’s family did not disclose the location of Respondent and Child. By this time, Respondent had divorced the man she married after separating from Petitioner. On March 30, 2018, Respondent called Petitioner and informed him that she and Child were in the United States.  Respondent would not give an exact location but based on the telephone number from which Respondent had dialed, Petitioner discerned that the call came from Virginia. Petitioner did not consent to moving Child to the United States without him. In the summer of 2018, Petitioner asked Respondent for help in obtaining a visa so that he could visit Child. Respondent refused and stated that there was no need for Child to see him. In August 2018, Respondent then began restricting Petitioner’s ability to speak with Child.  Petitioner had not spoken with Child since September 13, 2018.

The Magistrate Judge noted that he must evaluate Petitioner’s claims against the standards of Rule 12(b)(6) of the Federal Rules of Civil Procedure to ensure that the Petition contains plausible claims upon which relief may be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining the analysis for examining a plaintiff’s claims under a 12(b)(6) motion to dismiss). To meet this standard, a complaint must set forth “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” In determining whether allegations are plausible, the reviewing court may draw on context, judicial experience, and common sense. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 679).

The court noted that to prove the wrongful retention of a child, a petitioner must prove by a preponderance of the evidence that (1) “it is a breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention,” (2) the removal violated the petitioner’s custody rights under the law of the home country, and (3) the petitioner exercised custody rights over the child at the time of the removal. Hague Convention, art. 3, 191.L.M. at 1501; 22 U.S.C. § 9003(e)(1)(A); Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001); see also 22 U.S.C. § 9003(e).
The place of habitual residence is established based on the circumstances of each case. To establish the place of habitual residence before the removal or retention, federal courts use a two-part framework. See Maxwell, 588 F.3d at 251; Velasquez v. De Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9 (E.D. Va. 2014). The first question federal courts analyze is whether both parents shared an intention to move from the country of residence. Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9. The second question is whether there was an actual change in geography within an appreciable period of time, such that the child will be acclimatized to the new residence.  The Court found that the Child’s habitual residence was Honduras. First, both parents did not have a shared intention to move from Honduras to the United States. Petitioner did not know that Child moved to the United States until weeks after Child had already been removed from Honduras. Petitioner did not consent to Respondent relocating Child to Virginia; rather, Respondent unilaterally decided to remove Child. Second, even though there was an actual change in geography because Respondent took Child to the United States, there was no evidence before the Court to suggest this change was not “coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Maxwell, 588 F.3d at 251. Child was born in Honduras and remained there until she was removed by Respondent over a year ago. Pet. Although Child has remained in the United States for over a year, which may lead to an inference of acclimation, there was no evidence that Child attended school in Virginia, that she was a legal resident of the United States, or that she participated in school activities. The length of stay is only but one factor to consider when determining Child’s acclimation. Without other evidence that Child had acclimated to the United States or Virginia, the Court found that Child’s habitual residence remains Honduras.

The Court found that petitioner had custody rights. Under Honduran law, “the exercise of parental authority belongs to both parents jointly.” Honduran Family Code, Title V (Custody), Chapter I (General Provisions), Art. 187. Moreover, parents who do not cohabitate still share the care and custody of the children. Honduran Family Code, Art. 193. When a parent reserves patria potestas rights over a child, among the rights the parent retains is the right to choose where the child is domiciled. Alcala, 2014 U.S. Dist. LEXIS 153728 at *15; see also 22 U.S.C. § 9003(e). As such, a parent who wishes to travel outside of Honduras must obtain written permission from the other parents. Honduran Code of Childhood and Adolescence, Chapter III (Authorization to Travel), Art. 101. Petitioner has custody rights over Child under Honduran law. When Petitioner and Respondent separated, Petitioner did not relinquish his custody rights over Child. Petitioner still had patria potestas rights over Child. As such, Respondent was required to obtain permission from Petitioner of her intent to move Child to the United States. See Honduran Code of Childhood and Adolescence. Chapter III (Authorization to Travel), Art. 101. Respondent failed to seek permission or inform Petitioner that she was removing Child from Honduras. She instead informed Petitioner weeks after Child had already been removed from Honduras. Therefore, Petitioner retained custody rights over Child and the removal of Child violated Petitioner’s custody rights.

Based on the facts, the Court found that Petitioner retained and exercised custody rights over Child at the time of removal, and that Petitioner demonstrated by a preponderance of evidence that Respondent wrongfully removed Child from Honduras. Petitioner exercised and retained his custody rights over Child after he separated from Respondent. Respondent breached Petitioner’s custody rights by removing Child from her habitual residence of Honduras and violated Petitioner’s patria potesta rights by removing Child from Honduras without Petitioner’s consent. Child should be returned to Honduras.

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