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Thursday, March 4, 2021

Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021)[Montenegro] [Federal & State Judicial Remedies] [Summary judgment] [Petition granted] [Stay denied]


In Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021) Respondent, Bahrija Elezovic, sought a stay pending appeal the  February 9, 2021 opinion and order requiring that she return her six-year-old daughter N.L. to Montenegro forthwith, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) Lukic v. Elezovic, No. 20-CV-3110 (ARR) (LB), 2021 WL 466029, at *10 (E.D.N.Y. Feb. 9, 2021).


Respondent had not complied with the order. After petitioner, N.L.’s father, filed a motion for contempt, respondent’s counsel informed petitioner’s counsel that respondent agreed to proceed with petitioner’s plan in which petitioner accompanied N.L. back to Montenegro. On March 1, 2021, the parties received a decision from the Montenegrin Family Court in their custody dispute over N.L.  Petitioner had moved to amend the 2015 custody judgment that afforded physical custody rights to respondent. The Montenegrin Family Court denied petitioner’s request and declined to disturb the 2015 custody judgment. Id. After reviewing this judgment, respondent’s counsel informed petitioner’s counsel that respondent believes this decision “entirely changes the situation.” Respondent then filed a notice of appeal and notified petitioner’s counsel that she intended to seek a stay, as well. Respondent filed a stay motion on March 2, 2021.


The Court pointed out that  Rule 62(c) of the Federal Rules of Civil Procedure permits a district court to stay enforcement of a judgment while an appeal is pending. A party seeking such a stay bears a “difficult burden.” United States v. Private Sanitation Indus. Ass’n, 44 F.3d 1082, 1084 (2d Cir. 1994). In evaluating whether to stay a “return order” under the Hague Convention, “[c]ourts should apply the four traditional stay factors ...: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Chafin v. Chafin, 568 U.S. 165, 179 (2013) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). “Staying the return of a child in an action under the [Hague] Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 n.1 (6th Cir. 1996). “The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court.” The district court concluded that (1) Respondent was unlikely to succeed on the merits of her Appeal. (2)  Respondent would not ne Irreparably injured absent a Stay, but a Stay Would Substantially Harm Petitioner and N.L. and (3)  The Public Interest Favors Denying a Stay.“ [T]he public interest, as relevant to a Hague Convention dispute, is primarily defined by the treaty itself, the express purpose of which is ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State.’ ” Hofmann, 2012 WL 8466673, at *1 (quoting Hague Convention art. 1); see also Vale, 2008 WL 2246929, at *3 (“[T]he public interest of this country and of other countries which are signator[ie]s to the Convention is met when the purpose of the Convention is met.”). “Protraction ... is hardly consonant with the Convention’s objectives.” Chafin, 568 U.S. at 185 (Ginsburg, J., concurring). Here, denying a stay pending appeal would better adhere to the Hague Convention’s purpose. N.L.’s wrongful retention has continued for more than a year, and further delay will cause significant harm to petitioner and N.L. Moreover, I have reviewed the 2021 custody judgment, respondent’s only new evidence, and determined that it does not alter my return analysis. See supra Section I. Thus, N.L.’s expeditious return to Montenegro furthers the objectives of the Hauge Convention and, in turn, the public interest .For the foregoing reasons, the court denied respondent’s motion to stay its February 9, 2021 opinion and order pending appeal under Federal Rule of Civil Procedure 62(c).


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