Carranco v Munoz, 2013 WL 150760 (D.N.J.) [Mexico] [Habitual Residence] [Petition Granted]

In Carranco v Munoz, 2013 WL 150760 (D.N.J.) Petitioner Andres Augusto Castenada Carranco was a Mexican citizen currently living in Chiapas, Mexico. Respondent Arianna Munoz Cabrera was a Cuban citizen and a U.S. legal permanent resident living in Newark, New Jersey. Petitioner and Respondent were married in Cuba in or about October 2006. Following their marriage, the parties lived in Chiapas, Mexico as a couple. There, they had a child-Ana Daylen Munoz Carranco ("Ana")-who was born on April 9, 2008. Respondent was Ana's primary caretaker, as she did not work outside the home in Mexico. In November 2009, Petitioner traveled to the United States with Respondent and Ana on tourist visas to visit Respondent's father and stepmother in Newark, New Jersey. Petitioner returned to Mexico after approximately two weeks, while Respondent and Ana remained in New Jersey for approximately a month and a half. Upon Respondent and Ana's return to Mexico in December 2009, the parties experienced marital discord. Consequently, Respondent told Petitioner that she wanted to live with her parents in New Jersey. Petitioner then told Respondent that "she could leave alone, but that the child wasn't leaving." On July 9, 2010, the parties entered into a consent agreement that, in relevant part, required (1) Petitioner to take Ana to Houston, Texas for purposes of remaining in the United States as a tourist until December 15, 2010; and (2) Respondent to return Ana to Petitioner on December 15, 2010.

    On or about July 22, 2010, the parties entered the United States via Mexico's border with Texas. Petitioner and Ana entered with tourist visas, and Respondent was paroled pursuant to the Cuban Adjustment Act. Approximately one day later, Respondent and Ana traveled to New Jersey where they stayed with Respondent's family, and Petitioner returned to Mexico. At some point between September and October 2010, Respondent asked Petitioner whether she could return Ana to Mexico before December of that year. Respondent wanted to return Ana prior to the date agreed upon in the consent agreement because she wanted time to adapt to living in New Jersey. Petitioner agreed to accept Ana's early return in or about September/October 2010, and Respondent sent Ana to Mexico shortly thereafter. In February 2012 Petitioner agreed to allow Ana to visit Respondent from May to August of that year. Respondent acknowledged that she and Petitioner orally agreed that Ana
would visit only for the summer, and would return in time to start the 2012-2013 school year in Mexico. On or about May 6, 2012, Petitioner and Ana traveled to Houston, Texas where they met Respondent. Respondent subsequently traveled to New Jersey with Ana, and Petitioner returned to Mexico. In June 2012, Respondent informed Petitioner that she wanted Ana to remain in New Jersey permanently, and would not return Ana to Mexico in August 2012.

On November 27, 2012, Petitioner filed his Petition. He personally served Respondent with copies of the Petition and his application with the Mexican Foreign Ministry on or about December 5, 2012. From early May 2012 until the present, Ana resided with Respondent in New Jersey, and has grown attached to Respondent's father, stepmother, and two brothers. Throughout this time, Petitioner has regularly communicated with Ana by telephone.

The court held that it had subject matter jurisdiction of this matter premised on 42 U.S.C. ¶11603(a), which provides that "[t]he courts of the States and the United States district courts shall have concurrent jurisdiction of actions arising under the Convention." Mexico and the United States are contracting states under the Convention.

Petitioner argued that the date of wrongful retention was August 2012 since that is the date the parties agreed Ana would return to Mexico. Respondent argued that the "measuring date for wrongful retention is December 5, 2012," as that is the date that "[P]etitioner filed a petition for the return of the child," and "personally served [R]espondent at her parent's home." The Third Circuit has endorsed the proposition that the retention date is thedate that a parent unequivocally communicates his or her desire to regain custody. However, when parents mutually agree to allow their child to travel outside the country of habitual residence for a specifically defined period of time, the retention date is measured as of the date on which the parent outside the country of habitual residence fails to return the child as agreed. See Karkkainen, 45 F.3d at 290. Petitioner and Respondent agreed in February 2012 that Ana would visit New Jersey until August 2012, and then return to Mexico. Respondent failed to return Ana to Mexico as agreed. Accordingly, the measuring date for wrongful retention was August 2012.

The Court found that as of the date of her May 2012 trip, Ana was a habitual resident of Chiapas, Mexico. That is where Ana was born and resided with the parties until Respondent immigrated to the United States in July 2010. Chiapas, Mexico is also where Ana has lived for all but approximately eight of the approximately 56 months she has been alive. Respondent acknowledged that the parties orally agreed that Ana's visit to New Jersey in the summer of 2012 would be temporary. Under the terms of the parties' oral agreement, Respondent was to ensure that Ana return to Mexico at some point in August 2012. Respondent failed to do this, and decided unilaterally that Ana would permanently remain in New Jersey. Respondent's changed intentions cannot result in an alteration in Ana's habitual residence. See Mozes, 239 F.3d at 1067. Thus, the Court concluded that Ana's habitual residence in August 2012 was Chiapas, Mexico.

The Court found that Respondents unlawful retention of Ana was in breach of his custody rights under the Civil Code for the State of Chiapas, Mexico (the "Civil Code"), which provides that "both parents have custody of their minor children." The Civil Code enshrines the concept of patria potestas is understood to mean the relationship of rights and obligations that are held reciprocally, on the one hand, by the father and mother or in some cases the grandparents and, on the other hand, the minor children who are not emancipated." Thus, under the Civil Code, etitioner had the right to exercise parental authority (i.e., patria potestas ) over Ana at the time of retention. Respondent's retention of Ana in New Jersey against Petitioner's will violates Petitioner's right to exercise parental authority over Ana in accordance with the Civil Code. Petitioner was exercising his custody rights at the time of retention.

　

Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) [Germany] [ Attorney's Fees and Costs]

In Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) after the Court granted the Verified Petition, and ordered respondent to surrender custody of the minor child to petitioner's father for return to Germany, Respondent filed a Notice of Appeal and sought a stay pending appeal in conjunction with her Notice of Appeal. The Court granted a temporary stay to allow respondent to seek a stay from the Eleventh Circuit Court of Appeals. On June 19, 2012, the Eleventh Circuit Court of Appeals dismissed the appeal based on petitioner's unopposed motion to dismiss the appeal as moot.

Petitioner now sought recovery of attorney fees and costs from respondent pursuant to the ICARA. Petitioner sought attorney's fees of $497,612.50, taxable costs of $23,950.96, and non-taxable expenses in the amount of $55,450.46, under Title 42, United States Code, Section 11607(b) (3), The district court observed that under this section, the Court has "broad discretion" in determining the fees, expenses, and costs, unless respondent satisfies the burden to establish that an award would be "clearly inappropriate." A reasonable attorney fee is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and a "reasonable hourly rate" is "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation," Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). The party seeking an award of fees should submit adequate documentation of hours and rates in support, or the award may be reduced. Hensley, 461 U.S. at 433. The burden is on the fee applicant "to produce satisfactory evidence" that the rate is in line with those prevailing in the community. Blum v. Stenson, 465 U.S.886, 896 n. 11 (1984).

Petitioner sought $590. 00 an hour for Mark S. Scott, $505.00 an hour for Jeffrey D. Pollack, $450.00 an hour for both Michelle M. Gervais and Warren D. Zaffuto, and $255.00 an hour for the paralegal. Counsel argued that "[g]iven the specialized and complex nature of Hague Convention cases", the hourly rates are reasonable in light of the range of fees previously found to be reasonable in the Middle District of Florida. The applicable prevailing market in this case was the Fort Myers area. Counsel did not provide an affidavit by an attorney in the Fort Myers area regarding the general reasonableness of the fee request, or an affidavit as to the proposed hourly rates."If a fee applicant desires to recover the non-local rates of an attorney who is not from the place in which the case was filed, he must show a lack of attorneys practicing in that place who are willing and able to handle his claims." ACLU v. Barnes, 168 F.3d 423, 437 (11th Cir.1999). The Court found that petitioner had not met the burden of demonstrating that the proposed hourly rates were reasonable, or that the Miami rate should be applied, or that no local counsel were available to handle the case. Therefore, the Court determined the appropriate hourly rate. It found no inherent reason to penalize petitioner for utilizing more than one attorney, much as respondent elected to do in this case. See Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11^th Cir.1983) ("An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation."). The Court found that Mr. Scott's language skills warranted the slightly higher than normal rate, however, the Court found that Mr. Pollack's rate should be considerably lower as he was an associate who was not admitted to practice in Florida and had less relevant experience than lead trial counsel, who is a partner. Upon review of counsel's respective experience and with due consideration to local prevailing rates, the Court fixed the reduced hourly rates at $400.00, $250.00 $300.00 $225.00 and $125.00 for the paralegal.

In determining the reasonable amount of hours, the Court held that it may conduct an hour-by-hour analysis or it may reduce the requested hours across the board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.2008), and the Court must eliminate excessive, unnecessary, and redundant hours, Norman, 836 F.2d at 1301-02. When multiple attorneys are involved, the Court must consider whether they are being compensated for their distinct contributions or whether there is duplication. Johnson v. University College of Univ. of Ala., 706 F.2d at 1208. In this case, counsel did not sufficiently demonstrate that they used "billing judgment", and therefore the Court was unable to determine whether the hours were reasonable. See ACLU v. Barnes, 168 F.3d at 428. The Court was inclined to deny the motion in its entirety for the lack of billing judgment exercised and the flood of unsupported documentation, but considered the billing records attached as Exhibit B and filed in three parts to reduce the request.

Some of the entries were superfluously redacted and were denied for the reason that their reasonableness or relation to the Hague petition proceedings could not be determined. The Court did not apply Miami counsel's hourly rate for travel to Fort Myers from Miami without any affidavit attesting that no Fort Myers local counsel was available or capable of representing petitioner in this matter. The Court did not include the hours for travel overseas without argument or an affidavit that the travel time was spent working on the Hague petition proceedings. The Court eliminated travel time to Fort Myers and "daily rates" for simply being present in Fort Myers awaiting a decision by the Court. The Court did not permit hours for the attendance of the paralegal at trial when co-counsel was present to assist lead counsel for a two day hearing that did not take place two days in a row and also billed for that time. The hours also included the paralegal's travel time, coordinating exhibits with the courtroom deputy, and a great deal of secretarial tasks including the compilation of exhibits and folders for counsel. After all reductions, the Court awarded petitioner a total of $184,047.00 in attorneys' fees at the District Court level.

The court held that Petitioner sought an excessive $55,450.46 in non-taxable expenses for travel expenses, legal research, postage and overnight mail, messenger services, and translation services. Although the expenses were incurred "on behalf of the petitioner", they were not all necessary, and counsel's travel expenses had no relationship to the "transportation costs related to the return of the child" by either party. 42 U.S.C. § 11607(b) (3). The expenses of counsel was denied in their entirety as clearly inappropriate.

Petitioner sought $23,950.96 for taxable costs and filed a separate proposed Bill of Costs in support. Under Fed.R.Civ.P. 54(d)(1), costs "should be allowed to the prevailing party" unless the court provides otherwise. Deposition costs "merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only," are not recoverable. EEOC v. W & O, Inc., 213 F.3d 600, 620 (11th Cir.2000). Likewise, costs for charts and exhibits are not taxable, and copying costs are otherwise evaluated based on their necessity, including for discovery. "Compensation of interpreters" under Section 1920(6) is limited to the cost of oral translation and does not include document translation. Kouichi Taniguchi v. Kan Pac. Saipan, Ltd., 132 S.Ct. 1997 (2012). The Court taxed costs against respondent for the $350.00 filing fees of the Clerk; $746.00 for summonses and subpoenas; $13,282. for transcripts; and $4,672.41 for printing without any specific objection to their necessary use in this case. The $988.03 for demonstrative aids was not permitted as unsupported and unnecessary for use in this case. The $2,385.50 for interpreter services was reduced to reflect only the oral interpretation costs for English to German in the amount of $1,592.75 in light of the recent Supreme Court case. Therefore, the Court taxed costs in the amount of $20,643.26.

The Petitioner sought $63,073.50 in appellate attorneys' fees for 132.3 hours, and an additional $2,690.72 in costs . The Court denied appellate fees in their entirety. The Court was frustrated by the failure of counsel to properly divide and supplement the first request for fees with separate billing statements that are limited to the appeal. Instead, counsel have re-submitted the same billing records previously submitted with no indication of how they reached a total of $63,073.50. The Court permitted attorneys' fees at the trial level with some trepidation and after expending an excessive amount of time deciphering the billing records. The Court would not hazard to estimate the appellate fees based on the submissions. The motion for appellate fees was denied.

Petitioner sought $2,690.72 for printing, copying, legal research, overnight mail, and messenger services, under both 28 U.S.C. § 1920 as taxable costs and under ICARA as necessary costs associated with the return of the minor child. Petitioner sought $398.55 for printing and duplication, which is a taxable cost. The other amounts were not taxable costs recoverable under Section 1920. Computerized research costs are not taxable costs. Respondent did not argue that the cost was not necessary for use in the case or that this amount was specifically excessive. Therefore, this amount was permitted.

Petitioner sought $35.90 for messenger expenses to deliver documents to the Eleventh Circuit Court of Appeals. The Court permitted this expense as a necessary expense related to the return of the child. The Court did not permit the $267.14 for overnight deliveries to the Ritz-Carlton in California where apparently counsel was located while the appeal was ongoing, or to other counsel and law firms without any indication from counsel how the expenses were necessary to the return of the child. The $1,989.13 for legal research was denied as clearly inappropriate and unrelated to the actual return of the child.

Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) [Canada] [Habitual Residence] [Petition Granted]

In Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) On January 2, 2013, Petitioner Jonathan William Bedder filed a petition for the return of his daughter, "R," to Canada. Petitioner alleged that his daughter was wrongfully abducted to the United States by his estranged wife, Respondent Sarah Rebecca Bedder.


Sarah and Jonathon met as undergraduate students in New York. Petitioner was a Canadian citizen, while Respondent and R were United States citizens. The couple married in June of 2008, beginning married life in Jonathon's apartment in upper Manhattan. Their daughter was born on October 5, 2009 during their sojourn in New York. In or about late 2010 or early 2011, the couple decided to move to Seattle, Washington, where Petitioner hoped to find more sustainable employment. After they were evicted from their apartment in Seattle, Petitioner flew home to Canada in late June, and Respondent's and R's travel was booked to fly to Canada on July 30, 2012. At the time they were evicted, both hoped to eventually return to Seattle and find a new apartment. The couple eventually canceled Respondent and R's return tickets to Seattle, notified R's Seattle preschool that she would not be returning, and canceled their U.S. health insurance. They engaged in extensive activities to complete their family's relocation to Canada. They went shopping and purchased clothing and additional toys, since they had originally planned to stay for only a month. Respondent requested that a few small items be sent to their new home in Winnipeg, and the remaining items originally placed in storage in Seattle were eventually sold or donated to charity. With his parents' financial support and encouragement, Petitioner enrolled in additional computer certification courses. The couple obtained a Canadian health insurance card for R, and almost immediately enrolled her in a local religious preschool three mornings per week. Respondent wrote several blogs, and her contemporaneous blog entries were telling. In August she wrote "I'm so grateful that there was nothing really tying us to Seattle so we had the option to just stay here instead of returning to Seattle." In September, she wrote about R's enrollment in her new Canadian preschool. "I'm so grateful that there's a religious preschool here that's comparable to MMSC in Seattle. By early September, 2012, the couple had met with an immigration lawyer, who explained the requirements for Sarah to obtain permanent legal residency in Canada. Despite their serious marital problems, the couple still hoped to work out their differences. Initially, Jonathon expressed a willingness to legally sponsor Sarah-a Canadian legal commitment to be financially responsible for her for a period of three
years. However, during a family counseling session on or about September 20, 2012, Petitioner conveyed to Respondent that he did not think their marriage would survive.

On that day or shortly thereafter, he advised Respondent that he would not sponsor her. Respondent reacted with anger, but expressed no intention to leave Canada prior to December 2012. She continued to live-with the consent of all involved- in her basement quarters, and R continued to sleep in her second-floor bedroom. The couple considered themselves separated as of September, when Jonathon moved to the main floor of his parents' home and began sleeping on the couch. Sarah testified that she continued to pursue her options for remaining in Canada by consulting with another immigration lawyer. Respondent looked into obtaining a work permit, another sponsor, or extending her visitor's visa, which was valid on its face until January 30, 2013 and could be extended for up to 2 years. Although Respondent testified that she believed that it would be "difficult" to extend her visa without showing that she had some money in a bank account, Respondent repeatedly testified that she made a "good faith effort" to remain in Canada and that she intended to remain in Canada if she could. She testified that she pursued employment opportunities in part through the local Jewish community, and through that community she was able to obtain one job interview in November. As a result of that interview, she was initially offered training to become a kosher inspector at a bakery, but that position fell through in early December. When that occurred, the Jewish community offered to help her find a different position.

In mid-November, Respondent and Petitioner had an argument about the impending break-up of their marriage, during which Respondent told Petitioner that if he would not sponsor her and she was forced to leave Canada, she would take R. Petitioner advised Respondent she would not be permitted to do that, and that his parents had placed R's passport in a safe deposit box to prevent her from such action. Respondent suggested, and equivocally testified, that Petitioner knew or should have known from the start that Respondent's move to Canada was conditioned on the success of her marriage and corresponding ability to remain legally in Canada with her daughter. However, Respondent frequently contradicted herself regarding these intentions, and the Court foundds credible Petitioner's testimony that Respondent never expressed (or held) any intention to leave Canada with R until, at the earliest, the November argument. When asked where she believed R's habitual residence might be, if not Winnipeg, Respondent was unable to answer other than "the United States." She testified that she never made any effort to return to Seattle after arriving in Canada, but also disavowed Cincinnati as R's "habitual residence." On Thursday, December 13, 2012, Petitioner enlisted the help of a friend in her tight-knit religious community to hide R's original birth certificate, in furtherance of a plan to leave and take R to the U.S. The next day, deliberately concealing her plans from her husband and R's grandparents, Respondent picked R up from preschool and took R to her Rabbi's house, where Petitioner and his mother eventually discovered them. On Sunday evening, December 16, they drove Respondent and R across the U.S. border to North Dakota, where she was met by her parents. Her parents drove her and R to Cincinnati, where they arrived on December 18, 2012.

Respondent made two arguments against the Court's finding that R's habitual residence was Canada: (1) that she and R were not "settled" in Canada because they had resided there for fewer than 6 months when she departed; and (2) that her initial agreement for R to live in Canada was contingent upon Respondent's own circumstances, which changed over time due to the impending breakup of her
marriage and additional barriers she faced in order to obtain permanent residency in Canada. The Court held that neither argument had legal merit Respondent's first argument was rejected because the issue presented was wholly separate from the issue of domicile, or the determination of which "home State" a child may be living in under the Parental Kidnapping Prevention Act or Uniform Child Custody Jurisdiction and Enforcement Act. Under ICARA, habitual residence may, at least theoretically, be established in a single day. Respondent's second argument was equally irrelevant to the Court's inquiry. The Sixth Circuit has instructed courts to look backward to determine the facts and circumstances, without considering the subjective future intentions of her parents . See Robert, 507 F.3d 981, 989-993;Friedrich v. Friedrich ("Friedrich I"), 983 F.2d 1396, 1401 (6th Cir.1993). The critical issue was whether R's living arrangements in Canada evinced a "degree of settled purpose from the child's perspective," and whether the circumstances were "sufficient for acclimatization." Robert, 507 F.3d at 989. Where, as in this case, the child is able to develop "a certain routine" and acquire "a sense of environmental normalcy," and is able "to form meaningful connections with the people and places [she] encounters each day," then the court must focus on the child's degree of acclimatization. Karkkainen v. Kovalchuk, 445 F.3d 280, 292). When R moved to Canada she was very young, a few months shy of her third birthday. She lived there in the same household with both parents and her paternal grandparents for four and a half months, a period of time that was appreciably long in a toddler's life. She was given no indication by either parent that her stay in Canada was for just days or weeks as if on a holiday. In fact, both parents unequivocally expressed a joint intention, not later than early August 2012, to remain in Canada indefinitely with her while they made attempts at a fresh start in their personal, financial, and professional lives. The fact that some of those attempts ultimately failed was of no consequence to the analysis. The court found that Canada had become R's habitual residence within a week of her arrival, not later than August, 2012. Unlike a newborn who may be less cognizant of her environment, R was able to form many attachments to people and places, and was actively encouraged by her parents to do so.

The petition was granted, with Petitioner to assume temporary care, custody and control of R and to accompany her on her return to Canada.

Yaman v. Yaman, 2013 WL 322204 (D.N.H.) [Turkey] [Well-Settled] [Equitable Tolling]

 In Yaman v. Yaman, 2013 WL 322204 (D.N.H.) Ismail Ozgur Yaman, the children's father, was granted custody of both children by a Turkish court. He filed a petition seeking an order requiring that the children be returned to Turkey pursuant to the Hague Conventio. Linda Margherita Yaman, the children's mother, responded by arguing, that the children should not be returned to Turkey because they were "now settled" in New Hampshire. Dr. Yaman conceded that he did not file his petition within the one-year filing period, but he argued that the filing period should be equitably tolled because Ms. Yaman made it impossible for him to file his petition earlier by concealing the children's whereabouts. The Court denied his motion to preclude the Respondent from raising the "well-settled" defense and held that concealment does not equitably toll the Hague Convention's one-year filing period.

Dr. and Ms. Yaman met in 1997 in Detroit, Michigan where he was enrolled in post-graduate studies at Wayne State University. The couple married in August 2000 in Turkey, and then returned to the United States. Ms. Yaman became a Turkish citizen on October 3, 2000. The couple's older daughter, K.Y., was born on March 5, 2002, in the United States and later became a Turkish citizen. In January 2003, the family moved to Turkey, where Dr. Yaman's parents lived, and where Dr. Yaman had been hired as a professor in the Civil Engineering Department at the Middle East Technical University. The Yamans' younger daughter, E.Y., was born in Turkey on August 11, 2003. Both children were dual citizens of Turkey and the United States. In May 2004, Ms. Yaman accused her husband of sexually abusing their daughters. Dr. Yaman denied the allegations. The parties separated in late December 2004. In February 2005, Dr. Yaman filed for divorce, citing the "irretrievable breakdown of the marriage." Ms. Yaman filed a counter suit in March 2005. Following divorce and custody proceedings, on March 13, 2006, a Turkish family court rejected the abuse allegations, concluding after a thorough investigation that they were false. The court granted Dr. Yaman sole custody of the children. In August 2007, Ms. Yaman fled Turkey in a boat bound for Greece with the children and without informing Dr. Yaman of her intentions to leave or where she was going. From Greece, Ms. Yaman traveled with the children to Andorra, where they lived for about two and a half years. She then moved with them to the United States in 2010, where they have remained to date. Dr. Yaman filed a Hague Convention petition in this court in June 2012. He contended that Ms. Yaman sought to conceal the children's whereabouts from him after taking them from Turkey. For purposes of the motion, the Court assumed that his allegations of concealment were true.



The Court observed that Article 12 establishes rules for when a tribunal must issue a return order that differ depending upon the amount of time that elapses between the date of abduction and the date the return petition is filed. If "a period of less than one year has elapsed from the date of wrongful removal or retention," Article 12 states that "the authority concerned shall order the return of the child forthwith." Hague Convention, art. 12. In contrast, if the judicial or administrative proceeding is commenced more than one year following abduction, a return order must issue "unless it is demonstrated that the child is now settled in its environment.

The district Court rejected Dr. Yaman argument that the one-year filing period set forth in Article 12 must be equitably tolled while an abducting parent is concealing the location of a wrongfully removed child. Ms. Yaman. It found that the treaty did not authorize a court to equitably toll the one-year filing period. Neither the Hague Convention nor ICARA explicitly authorizes a court to equitably toll the one-year period set out in Article 12.