Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) [Colombia] [Federal & State Judicial Remedies] [Temporary Restraining Order]

In Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) Petitioner Francelly Sanchez Londono filed a Verified Emergency Petition for the Return of Child and Warrant of Arrest in Lieu of Writ of Habeas Corpus, pursuant to 42 U.S.C. § 11601. The petition was accompanied by an Emergency Motion for Relief and an Application to Proceed in District Court Without Prepaying Fees or Costs. The petition was brought pursuant to the Hague Convention and sought, among other things, to compel respondent Nelson Gonzalez to appear in court to show cause why the child EG should not be returned to Colombia. The petition alleged that EG was brought from Colombia to the United States in May 2011 by her father, Gonzalez, and had been retained here without petitioner’s consent.

Petitioner filed an Emergency Petition for the Return of Child and an Emergency Motion for Relief. The court denied the motion for poor person relief. However, it observed that upon appropriate motion, the Court has the authority to prevent a child’s concealment or removal from the District until such a petition is ruled upon. See 42 U.S.C. § 11604(a); Fed.R.Civ.P. 65. ICARA expressly authorizes a court to "take or cause to be taken measures under federal or state law, as appropriate, ... to prevent the child’s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a).

Given the representations made to the Court by petitioner, and the very serious irreparable harm that was likely to result both to the child and to petitioner in the event the child was wrongly removed from this jurisdiction, a temporary restraining order was justified to preserve the status quo pending a hearing. For the purposes of Fed.R.Civ.P. 65(b), the Court found that petitioner had made a sufficient showing that, without an injunction, she may sustain immediate and irreparable injury before there was an opportunity for a hearing. The record did not suggest any comparable irreparable harm to respondent that would result from the granting of this temporary injunction. The balance of hardships tiped in favor of petitioner. Based on the present record, the Court was also convinced that it was necessary to issue an injunction without prior notice to respondent. Petitioner’s submissions indicated a risk that, should notice be provided, the child might be concealed or taken from this jurisdiction before an injunction could be served. The Court did not require petitioner to post a bond as a condition of obtaining the injunction at this trial. It directed that a summons be served on the respondent.

Wood v Wood, 2013 WL 1907492, (E.D. Washington) [United Kingdom] [Federal & State Judicial Remedies ][Temporary Restraining Order] [Deposit Passport with Court]

 In Wood v Wood, 2013 WL 1907492, (E.D. Washington) Petitioner filed an Ex Parte Request for Expedited Consideration of Verified Petition for Return of Child to the United Kingdom and Issuance of Show Cause Order (ECF No. 3). He sought the return of his minor child, LPBW, to the child’s home country of the United Kingdom. He alleged that LPBW has been wrongfully retained in the United States by his mother, Respondent Melissa Renee Wood ("Respondent"), and was currently residing with Respondent in Moxee, Washington. Petitioner requested an order (1) temporarily restraining Respondent from removing LPBW from this Court’s jurisdiction; (2) requiring Respondent to deposit LPBW’s passport and other travel documents with the Court; and (3) directing Respondent to appear for a show cause hearing. Fearing that Respondent would attempt to remove the child from the Eastern District of Washington if given advance notice of these proceedings, Petitioner filed the motion ex parte.

The District Court observed that 42 U.S.C. § 11604(a) extends the Courts authority to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Morgan v. Morgan, 289 F.Supp.2d 1067, 1069 (N.D. Iowa 2003. In taking any preventative measures pursuant to § 1 1604(a), however, a court must ensure that "the applicable requirements of State law are satisfied." 42 U.S.C. § 11604(b).

Petitioner requested an order barring respondent from removing LPBW from this Court’s jurisdiction pending full adjudication of the Petition. Given that Petitioner filed his motion without serving a copy on Respondent, the Court construed this request as a motion for an ex parte temporary restraining order ("TRO"). Under Rule 65(b), a party seeking a TRO must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if the requested relief is not granted, (3) that a balancing of the hardships weighs in its favor; and (4) that the requested relief will advance the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should remain in force in the form of a preliminary injunction.

The Court found that the issuance of a TRO was appropriate. Petitioner established a prima facie case of wrongful retention under the Hague Convention by alleging that Respondent was holding LPBW, a child under sixteen years of age whose country of habitual residence is the United Kingdom, in the United States without his permission and in violation of his rights of custody under the Law of England and Wales. Petitioner also established to the Court’s satisfaction that Respondent and LPBW were currently residing within the Eastern District of Washington. Accordingly, Petitioner established a sufficiently high likelihood of success on the merits. Petitioner also established a sufficiently high likelihood of irreparable injury if the requested relief was not granted. According to the Petition, Respondent had taken LPBW "on the road" through at least four different states in an effort to conceal the child’s whereabouts from Petitioner. In light of these allegations, there was reason to believe that Respondent may remove LPBW from this Court’s jurisdiction upon learning of these proceedings if not expressly prohibited from doing so. If that occurred, Petitioner would likely experience great difficulty in locating the child and pursuing the child’s safe return to the United Kingdom. The Court found that injunctive relief was necessary to prevent this and other potential injuries from occurring. For these same reasons, the Court found that issuance of the Order without notice to Respondent was appropriate under Rule 65(b)(2). Prohibiting Respondent from removing LPBW from the Eastern District of Washington until she could be heard on the matter was a minimally burdensome condition. Indeed, given that Respondent and LPBW appeared to have settled in Moxee (at least for the time being), there was no reason to believe that either Respondent or the child will be burdened at all. Conversely, Petitioner faced a substantial hardship if the requested relief was not granted. As noted above, Petitioner’s ability to obtain effective relief under the Hague Convention would be seriously jeopardized if Respondent were to remove the child from this Court’s jurisdiction. Finally, the Court found that an order barring Respondent from removing LPBW from the jurisdiction would advance the public interest. In implementing the Convention through ICARA, the United States Congress found, inter alia, that "the international abduction ... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C. § 11601(a)(1), (2). Granting the requested relief would, at least temporarily, prevent Respondent from further profiting from her alleged wrongful retention of LPBW in the United States. Accordingly, the Court concluded that Petitioner was entitled to an order temporarily restraining Respondent from removing LPBW from the Court’s jurisdiction; it prohibited her from directly or indirectly removing the minor child, LPBW, born in 2007, from the Eastern District of Washington; directed that Petitioner shall not be required to give security under Rule 65(c); directed Respondent to appear before the court to show cause why she should not be prohibited from removing the LPBW from the Court’s jurisdiction until the proceeding was concluded; directed Respondent to produce LPBW’s passport and any other identification and/or travel documents at the hearing and to deposit them with the Court for safekeeping until the proceeding was concluded; and directed Petitioner to arrange for the Order, along with a copy of the Verified Petition and all attached documents, to be personally served upon Respondent at the earliest possible time, and file proof of service prior to the hearing.

Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) [Canada] [Federal & State Judicial Remedies] [Temporary Restraining Order] [Delivery of Passport to Court]

In Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) Petitioner alleged that he resided in Whistler, British Columbia, Canada where, until September 2012, he lived with Respondent and their three children. On March 15, 2013, Petitioner filed his Verified Complaint asserting a cause of action for Wrongful Retention under The Hague Convention on International Child Abduction. In the Petition, Petitioner sought return of the children to Canada to allow the courts of the children's "habitual residence" to determine any custody issues. Petitioner filed a motion seeking an ex parte Temporary Restraining Order to ensure that the minor children, remained in Nevada until the Court can resolve the merits of this matter.

The Court observed that Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders, and requires that a motion for temporary restraining order include "specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition," as well as written certification from the movant's attorney stating "any efforts made to give notice and the reasons why it should not be required."Fed.R.Civ.P. 65(b).Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. Like a preliminary injunction, the Court may issue a temporary restraining order if a plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ."Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22.

The district court concluded that Plaintiff established each of the prongs of the TRO analysisThe first prong requires Petitioner to establish that the children were removed or retained away from the country of their habitual residence. See Hague Convention, art. 3(a). The second prong of Petitioner's Wrongful Retention claim requires that Petitioner prove that Respondent's retention of the children in the United States was in breach of the custody rights of the Petitioner, as provided by Canadian law. Hague Convention, art. 3(a). Finally, Petitioner must establish that, at the time the children were removed or retained, Petitioner was actually exercising his rights of custody. Hague Convention, art. 3(b). Petitioner's Verified Complaint adequately demonstrates that he was exercising his rights of custody at the time Respondent brought the children to the United States and that Petitioner would have continued to exercise his rights of custody but for Respondent's allegedly wrongful retention of the children in the United States. Given the risk that Respondent could further conceal the location of the children, the Court found that Petitioner would likely be irreparably harmed in the absence of the requested relief to maintain the status quo.

The Court concluded that the risk of Respondent secreting away the children before the resolution of the Petition, outweighed any injury to the Respondent or the children that may result from ordering them to stay in the District. First, the Order merely maintained the status quo by ordering that Respondent and the children remain in the District during the pendency of this action. Second, the Verified Complaint stated that Respondent's parents reside in the District.  Thus, this Order would not impose a hardship on Respondent.

Accordingly, the balance of equities tipped in favor of Petitioner and supported the issuance of the requested temporary restraining order. "The public interest analysis for the issuance of [injunctive relief] requires [district courts] to consider whether there exists some critical public interest that would be injured by the grant of preliminary relief." ICARA expressly authorizes a court to "take or cause to be taken measures under Federal or State law, as appropriate, ... to prevent the child[ren]'s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a). Accordingly, in this case, the Court found no such public interest that would be injured by the issuance of such injunctive relief.

The Court also directed Respondent to deliver to the United States Marshal, for safekeeping, any passports for TC, KC, and AC that are were Respondent's possession, custody, or control, and shall further notify the United States Marshal if Respondent knows of any person having possession of such a passport. The Court directed that the summons and other papers be served upon the Respondent.

Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) [England] [Federal & State Judicial Remedies] [Use of Pseudonyms in Civil Litigation]

 In Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) Petitioner Mathangi Arulpragasam filed a petition under the Hague Convention seeking an order directing Respondent Benjamin Bronfman to refrain from retaining their son in New York and allowing Petitioner and son to return to England.

Petitioner requested that the following information be redacted from all court filings: 1. "[A]ll identifying information about the [c]hild (to protect his privacy and safety), including his name, the school he is now attending" and certain other personal information regarding the child; 2. "[I]dentifying information about [P]etitioner (to protect her safety and effectuate the [c]hild's privacy concerns)," to include Petitioner's home address and other personal information; and 3. "[T]he names of the parties (to effectuate the foregoing), including revision of the caption to be 'Anonymous v. Anonymous.' "

The Court granted the first two requests and denied the third request. It observed that this was not a child custody case, and was not governed by New York law, but by a treaty which Petitioner did not assert provided for the sealing of this proceeding. Petitioner argued that the Second Circuit's decision in United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995), supported the redaction of the personal information requested. The Court agreed with Petitioner that some of the information that Petitioner sought to redact from the filings should be redacted. Pursuant to Rule 5.2 of the Federal Rules of Civil Procedure, parties are required to redact certain personal information from all documents filed with the Court, including the name of the child. As to the other personal information Petitioner sought to redact, the Court found that such information should be redacted from all filings.

The Court denied Petitioner's third request which sought to conceal the identity of the parties in this case and to identify them as Anonymous v. Anonymous. Petitioner's only argument in support of this request was that "removing the parties' names from the caption will lessen the likelihood of interest being directed toward" the case. The Court held that the public's interest in Petitioner is not a legal basis for sealing this proceeding, nor is it a legal basis for anonymity. In Sealed Plaintiff v. Sealed Defendant, the Second Circuit discussed the standard governing the use of pseudonyms in civil litigation. 537 F.3d 185, 189-90 (2d Cir.2008). The court stated that "the interests of both the public and the opposing party should be considered when determining whether to grant an application to proceed under a pseudonym. Accordingly, we ... hold that when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." Id. at 189.The Second Circuit held that the balancing of interests entails the consideration of several factors citing. It noted that this list is non-exhaustive and district courts should take into account other factors relevant to the particular case under consideration Although Respondent did not oppose Petitioner's requests, Petitioner did not convince the Court that the balance of these factors weighed in her favor.