Search This Blog

Thursday, January 31, 2019

Guevara v Soto, 2018 WL 7108069 (E.D. Tennessee, 2018)[Mexico] [Report and Recommendation of Magistrate Judge] [Enforcement remedies]

In Guevara v Soto, 2018 WL 7108069 (E.D. Tennessee, 2018) on April 15, 2016, the Chief District Judge granted the Verified Petition and directed that defendant is to return the [C]hild to Mexico, the country of the [C]hild’s habitual residence.” In the Memorandum Opinion, the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the [C]hild’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the Child’s return to Mexico, and the issue was referred to a Magistrate Judge.  After hearing from both parties, the Magistrate Judge ordered Respondent to transport the Child to La Luz, Michoacán, Mexico, by May 16, 2016. On May 23, 2016, Petitioner filed an Emergency Petition, stating that Respondent and Child did not arrive in La Luz, Mexico, as ordered. Respondent’s attorney acknowledged that the last contact that he had with Respondent was on May 3, 2016, when he explained the Court’s previous Order and options to appeal. Respondent’s attorney also stated that he has made numerous attempts to contact Respondent to no avail. Prior testimony from Petitioner, which was uncontested, established that Petitioner visited La Luz, Mexico, on several occasions on May 16, 2016, and thereafter, but could not locate the Child or Respondent. The Chief District Judge instructed the Clerk of Court to issue a Writ of Attachment, which ordered the United States Marshals Service to take possession of the Child. Approximately a year later, the United States Marshals Service filed a return, stating that Respondent could not be located. Now, Petitioner stated that NCMEC has received a tip as to the location of the Child. The tip indicated that the Child was located in the United States.

The Petitioner made a Motion for Writ of Body Attachment of Respondent and Minor Child and for a Warrant of Arrest for Respondent .The Report and Recommendation of the Magistrate Judge  found it appropriate in these circumstances to issue another writ of attachment pursuant to Federal Rule of Civil Procedure 70, and determined that it would  recommend such action. Rule 70 provides as follows: (a) Party’s Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done--at the disobedient party’s expense--by another person appointed by the court. When done, the act has the same effect as if done by the party. Respondent was supposed to transport the Child to Mexico pursuant to the Judgment in this case, and later, was specifically ordered to transport the Child to La Luz, Mexico, by May 16, 2016. Accordingly, the Report and Recommendation recommended that the Clerk of Court issue another writ of attachment that directs the United States Marshals Service to execute Judgment and attach the Child. Once the Child is in custody, the Report and Recommendation recommended that the Child be delivered to the Tennessee Department of Human Services (or similar agency in the state in which the Child is found) for temporary placement, after which said agency shall make the appropriate arrangements with the United States Central Authority for the Child’s return to Mexico or to Petitioner.

Petitioner also requested an arrest warrant commanding the pick-up of the Child and Respondent. For authority, Petitioner cited to 22 U.S.C. § 9004, which states as follows: In furtherance of the objectives of article 7(b) and other provisions of the Convention, and subject to the provisions of subsection (b) of this section, any court exercising jurisdiction of an action brought under section 9003(b) of this title may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition. The Report and Recommendation found that by its clear language, § 9004(a) only applies to actions taken “before” the petition is ruled on. Here, the Petition was granted on April 15, 2016, and Petitioner was simply seeking assistance in executing the final Judgment. He was not requesting assistance “before the final disposition of the petition,” and therefore, this statute does not apply under these circumstances. The cases that Petitioner relied on involved arrest warrants that were issued to bring the abducting parent before the court so that the petition could be appropriately litigated. See McCullough v. McCullough, 4 F. Supp. 2d 411, 416 (W.D. Pa. 1998) (directing the United States Marshal to serve respondent with a warrant of arrest for the children and copies of the pleadings and that the United States Marshal bring the children before the court); Marquez v. Castillo, No. 8:14-CV-2407-T-30TBM, 2014 WL 5782812, at *3 (M.D. Fla. Nov. 6, 2014) (finding the provisional remedy in the above statute appropriate and ordering respondent not to remove the child from the court’s jurisdiction pending a hearing on the petition). 

Petitioner also relied on Pesin v Rodriguez, 244 F.3d 1250 (11th Cir. 2001). In Pesin, however, the court did not issue an arrest warrant pursuant to § 9004. Instead, after the court granted the petition, petitioner informed the court that respondent failed to return the children as ordered to do so. The district court set a status conference and ordered the respondent and the children to attend, but they failed to attend.  The court then issued a show cause order as to why respondent should not be held in contempt of court and scheduled another hearing.  Again, neither the respondent, nor the children, attended the show cause hearing. Following the respondent’s failure to attend the second hearing, the district court found respondent in contempt for her multiple refusals to comply with the court’s orders, and the court entered a bench warrant for her arrest. As demonstrated in Pesin, a finding of contempt of court is appropriate when a party fails to abide by the Court’s orders. “When a court seeks to enforce its order or supervise its judgment, one weapon in its arsenal is contempt of court.” Elec. Workers’ Pension Trust Fund of Local Union # 58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) (citing NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987)). The Magistrate Judge’s role in contempt cases is to certify facts relevant to the issue of contempt to the District Judge. See 28 U.S.C. § 636(e)(6)(B); The Euclid Chemical Company v. Ware et. al., No. 1:11-cv-135, 2013 WL 6632436, at *1 (S.D. Ohio Dec. 17, 2013) (stating the same). Accordingly, the Magistrate Judge certified the facts and recommended that the District Judge issue a show cause order to Respondent to appear on a date and time certain to show cause why she should not be held in contempt of Court for the failure to abide by the Court’s Orders to return the Child to Mexico.