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Saturday, April 24, 2021

Thursday, April 22, 2021

Bordelais v Bordelais, --- Fed.Appx. ----, 2021 WL 1554729 (Mem) (7th Cir., 2021)[Switzerland] [Federal & State Judicial Remedies] [Appeal moot] [Sanctions]


In Bordelais v Bordelais, --- Fed.Appx. ----, 2021 WL 1554729 (Mem) (7th Cir., 2021) Antoine Bordelais, a French citizen, sought the return of his child under the Hague Convention. Since his ex-wife, Valerie, an American citizen, took their child from Switzerland to Illinois in 2016, Antoine has sued her at least seven times for the child’s return. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020). 

In 2016, in the midst of divorce and custody proceedings in Swiss court, Valerie took the couple’s then-13-year-old child to visit her parents in Illinois. They did not return. Antoine petitioned in Illinois state court for divorce and for return of the child under the Hague Convention. Valerie counterclaimed, alleging that she had sole custody of the child and that removal would place the child in grave danger. In 2017, dissatisfied with the pace of the state court proceedings, Antoine filed a similar version of his state court petition in federal court. Valerie moved to dismiss the petition or stay the proceedings under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813–14 (1976), on grounds that Antoine’s suit duplicated his ongoing state court litigation. The district court agreed that the state and federal actions were parallel and stayed the suit. Antoine, arguing that he had withdrawn his state-court petition and that the case was closed, moved to lift the stay in 2018. Valerie disagreed with his characterization about the status of the state-court proceedings and insisted that disputes over their daughter were still being adjudicated. The court denied Antoine’s motion. In 2019, Antoine requested emergency “protective measures” under Article 7 of the Hague Convention to prevent what he believed was a real possibility that Valerie would take the child to Mexico, where she had relatives. The district court denied this request as inconsistent with its stay order. In November 2019, the child turned 16, and Valerie moved to dismiss the suit on grounds that the Hague Convention does not apply to children over 16. The district court held a hearing the following month and granted Valerie’s motion. The court added that it also denied Antoine’s oral motion to amend his complaint, as well as his motion to proceed on appeal in forma pauperis. Antoine then filed a notice of appeal.

 Valerie moved to dismiss the appeal for lack of jurisdiction. She argued that the Hague Convention no longer supplied the basis for federal jurisdiction because their daughter, upon reaching the age of 16, had aged out of the Convention, and the case was now moot. Antoine responded that the Convention continued to apply in Illinois until a child turns 18. 

The Seventh Circuit affirmed. It observed that the child turned 16 in 2019. The Convention, by its terms, “shall cease to apply when the child attains the age of 16 years.” See Hague Convention, art. 4. As the State Department has opined, “[e]ven if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen.” U.S. Dep’t of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986), quoted in Custodio v. Samillan, 842 F.3d 1084, 1088 (8th Cir. 2016) (dismissing as moot the appeal of denial of Hague Convention petition where child turned sixteen during pendency of proceedings).

 Valerie sought sanctions against Antoine under Federal Rule of Appellate Procedure 38, arguing that the appeal was frivolous and meant only to harass and intimidate her. She urged the Court to view the appeal in the context of the fifteen suits since 2016 that Antoine filed against her, her family, her employer, her lawyers, and her child’s therapist. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020) (Executive Committee order enjoining Antoine from filing any new civil action in district without first obtaining leave to file). The Seventh Circuit found that sanctions were warranted. Antoine subjected Valerie’s counsel to extra work to defend against his meritless arguments. Allen-Noll v. Madison Area Tech. College, 969 F.3d 343, 351 (7th Cir. 2020). He also wasted this and other courts’ time, not just with this appeal; he had filed five other appeals from his suits against Valerie and her family. And, the Executive Committee of the Northern District had run out of patience with his pattern of frivolous and duplicative filings. Accordingly, he was ordered to show cause within fourteen days why reasonable attorney’s fees and costs should not be imposed. The Court also warned Antoine that further frivolous appeals will subject him to monetary fines and a possible bar order pursuant to Support Systems International, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).


Wednesday, April 21, 2021

Sunday, April 4, 2021

Recent Hague Convention District Court Cases (List)

Luis Alfonso VH v Banessa Cristina AZ, 2021 WL 76971 (W.D. Virginia, 2021).

[Honduras] [Well-settled] [Petition denied]


Alverez Romero v Gajardo Bahamonde, 2020 WL 8459278 (M.D. Georgia, 2021)

[Chile] [Well-Settled] [Wishes of the child [Petition   denied] 


Dubikovskyy v. Goun, 2021 WL 456634 (W.D. Missouri, 2021) 

[Switzerland] [Wishes of the Child] [Petition denied]


Forcelli, v. Smith,.2021 WL 638040 (D. Minnesota, 2021)

[Germany] Necessary Expenses] [not clearly inappropriate] [Reasonable attorneys fees and transportation costs awarded]


Sanchez Mena v Gomez Paz, 2021 WL 633586 (D. Utah, 2021.) 

[Peru] [Federal & State Judicial Remedies] [Respondent’s motion for enlargement of time to file motion to dismiss moot. Respondent’s motion for consolidation of defenses denied. Respondent’s motion to amend the scheduling order is granted in part and denied in part.]


Colchester v Lazaro, 2021 WL 764136, (W.D. Washington, 2021)

[Spain] [Habitual Residence] [Petition granted] [Necessary expenses against Ms. Lazaro is not “clearly inappropriate]


Jose De Jesus Joya Rubio v Yelaine Memendez Alvarez, 2021 WL 956197 (S.D. Florida, 2021) 

[Mexico] [Well-Settled] [Wishes of the child] [Petition denied]


Radu v Shon, 2021 WL 1056393 (D. Arizona, 2021).

[Germany] [Necessary Expenses] [Clearly inappropriate] [Motion denied] 


Sanchez v Sanchez, 2021 WL 1227133 (M.D. North Carolina, 2021)

[Honduras] [Grave risk of harm] [Petition denied].



Friday, April 2, 2021

Saada v Golan, 2021 WL 1176372 (E.D. N. Y.) [Italy] [Federal & State Judicial Remedies] [Stay pending application for certiorari]



In Saada v Golan, 2021 WL 1176372 (E.D. N. Y.)  the district court denied the respondent’s motion to set aside the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or in the alternative, to stay the action pending her petition for writ of certiorari to the United States Supreme Court.

The petitioner, an Italian citizen, alleged that in August of 2018, the respondent, an American citizen, wrongfully kept their minor son, B.A.S., in the United States.  After a bench trial, in a March 22, 2019 decision, the district court found that B.A.S. was a habitual resident of Italy, and that while he would be subject to grave risk of harm upon repatriation, there were sufficient measures available in Italy that would ameliorate the risk to B.A.S. upon his return.  

The Second Circuit affirmed the decision in part and vacated it in part. Saada v. Golan, 930 F.3d 533, 537 (2d Cir. 2009) (Saada I). The Court agreed that Italy was B.A.S.’s “habitual residence” under the Hague Convention, but determined that certain ameliorative measures could not be enforced before B.A.S. was repatriated to Italy. The Second Circuit remanded the case with instructions to ensure that the measures necessary for B.A.S.’s safe repatriation could be “enforce[d] by the District Court or supported by other sufficient guarantees of performance.”  On May 5, 2020, after additional briefing and an extensive examination of the ameliorative measures available in Italy, the district court found that “the Italian courts are willing and able to resolve the parties’ multiple disputes, address the family’s history and ensure B.A.S.’s safety and well-being.” In December of 2019, the Italian court issued an order to help facilitate B.A.S.’s repatriation that included a protective order against the petitioner and an order requiring Italian social services to oversee his parenting classes and behavioral and psychoeducational therapy. Moreover, the petitioner agreed to give the respondent a sum of money to allow her to live independently of the petitioner and his family upon her return. The district court granted the petition and ordered that B.A.S. be returned to Italy. On January 21, 2021, the Court of Appeals affirmed that decision in its entirety. Saada v. Golan, 833 F. App’x 829, 831 (2d Cir. 2020) (Saada II).

 

On January 25, 2021, shortly after the Court of Appeals issued its mandate in Saada II, the respondent filed the motion seeking to vacate the May 5, 2020 order pursuant to Rule 60(b)(2), based on “newly discovered evidence.” Describing the Courts remarks at an October 16, 2018 proceeding as a “court order,” the respondent stated that the petitioner “hired an investigator who surveilled B.A.S. and the respondent and took pictures of them in their apartment,” in “blatant violation” of an October 16, 2018 court order directing the petitioner not to try to locate the respondent during the 2018 trial. According to the respondent, the surveillance showed that the petitioner will not comply with its orders, which in turn demonstrated that he would not follow the Italian court’s protective orders. In short, the respondent argued that this “new” evidence established that B.A.S. will face a “grave risk of harm” that cannot be ameliorated, and therefore, the petition should be denied. To support her allegation of secret surveillance, the respondent submitted the transcript of a November 2020 conversation between the petitioner, his father, and a rabbi who was working with the respondent to help her secure a get. Unbeknownst to the petitioner, the respondent was listening in, and the call was being secretly recorded. 


The Court observed that Rule 60(b) outlines the grounds for relief from a final judgment, order or proceeding, including “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P. 60(b)(2). A Rule 60(b)(2) motion must be made “no more than a year after the entry of the judgment or order or the date of the proceeding,” Fed. R. Civ. P. 60(c)(1), and may not be used “simply to relitigate matters settled by the original judgment.” The decision to grant a motion for relief under Rule 60(b) is left to the discretion of the court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). The district court found there was no evidence that the petitioner or his attorneys tried to find out where the respondent lived, certainly not during the trial or anytime thereafter. Knowledge of the limited investigation that did take place would not have changed the outcome of my May 5, 2020 order, because it did not establish that the petitioner violated an order of the Court or that the protections put in place in Italy would be insufficient to protect B.A.S. from a grave risk of harm. The evidence was not sufficient grounds to reverse the judgment; therefore, the respondent’s motion to set aside the judgment was denied.

 

The Court pointed out that in deciding whether to stay a return order in a Hague Convention case, courts must balance the “importance of the prompt return of children wrongfully removed or retained” with the concern that “shuttling children back and forth between parents and across international borders may be detrimental to those children.” Chafin v. Chafin, 568 U.S. 165, 178 (2013). “Staying the return of a child in an action under the Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996). Courts considering whether to stay a return order must 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, 568 U.S. at 179 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). A decision to stay the return should include an “appropriate consideration of the child’s best interests.” 

 

The district court found that given the small percentage of cases that the Supreme Court accepts each term, it was not likely that the respondent’s petition for certiorari would be successful. This case did present an interesting legal question, which appeared to be a matter of first impression before the Court. Overall, this factor did not weigh strongly for or against a stay. The court was not persuaded that the respondent would be irreparably injured absent a stay. The Italian court has put many protections in place to ensure the respondent’s safety in Italy, and she will have money to provide for herself and B.A.S. when they return. B.A.S.’s return would not moot the respondent’s claims or prevent her from continuing to litigate this action. See Chafin, 568 U.S. at 180. If the return order is reversed, there were currently no substantial barriers that would prevent the respondent’s return to the United States with B.A.S. The respondent was a United States citizen and would retain sole custody of B.A.S. in Italy, at least until the custody dispute was resolved in the Italian courts; she should be able to return to the United States if the Court ultimately decided in her favor. The prejudice to the Petitioner weighed against a stay. The Court ordered B.A.S.’s return to Italy almost two years ago, but he still resided in New York. 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. Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Friedrich, 78 F.3d at 1063). Public interest cautioned against further delay of the return order. Weighing all the factors the court declined to stay the case pending the outcome of the respondent’s petition to the Supreme Court. 


Sunday, March 7, 2021

Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021)[Honduras][Now-settled] [petition denied]

 

     In Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021) [Not Selected for Publication] Kevin Daniel Sauceda Bejarno appealed from the District Court’s denial of his petition to return his son, L.S., to Honduras. The Third Circuit affirmed. It held that although Appellant established a prima facie case that Appellee, L.S.’s mother, had wrongfully removed L.S. from Honduras to the United States, the District Court denied the return request because a petition filed more than one year after removal “is subject to certain affirmative defenses, including Appellee’s demonstration [by a preponderance of the evidence] that ‘the child is now settled in its new environment.’ ” Monzon v. De La Roca, 910 F.3d 92, 96 (3d Cir. 2018) The District Court determined that Appellee met this burden. [This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.]

 

The Court reviewed the factual findings for clear error and any conclusions of law de novo. See Yang v. Tsui, 499 F.3d 259, 270 (3d Cir. 2007). It found that in a careful and thorough analysis of the ten factors specified in Monzon, the District Court determined that only two weighed against L.S. being well-settled in his New Jersey home and community: “the stability of [Appellee’s] employment or other means of support” and “the immigration status of the child and parent.” These factors are: “(1) the age of the child; (2) the stability of the child’s new residence; (3) whether the child attends school ... consistently; (4) whether the child attends church regularly [or participates in other extracurricular and community activities]; (5) the stability of the parent’s employment or other means of support; (6) whether the child has friends and relatives in the area; (7) to what extent the child has maintained ties to [Honduras]; (8) the level of parental involvement in the child’s life; (9) active measures to conceal the child’s whereabouts ... ; and, (10) the immigration status of the child and parent.” A16 & n.14; see Monzon, 910 F.3d at 105, 106 n.88.  As to those factors, the District Court reasoned that L.S. and Appellee were not citizens, so “their immigration status remains uncertain,”  while their asylum application is pending, and that without a work permit, Appellee haf only “worked sporadically in a restaurant,” Nonetheless, it concluded that these considerations were greatly outweighed by the remaining considerations, including L.S.’s “stable” family life with his stepfather and half-brother, with whom he has “grown very close,”; his involvement in school, extracurricular activities, and community activities; and his memories of and ties to America, formed from ages four to six.

 

The Court rejected Appellants argument the District Court erred in declining to hear additional testimony concerning L.S.’s and Appellee’s immigration status and in refusing to treat this factor as dispositive of whether L.S. was well-settled. Appellee’s immigration status would not change the outcome of the ten-factor analysis nor would it be independently dispositive. Immigration status “is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test.” Hernandez v. Garcia Pena, 820 F.3d 782, 788 (5th Cir. 2016). The Court held that the District Court’s ultimate evaluation of the totality of the circumstances was consistent with Article 12 of the Hague Convention and the implementing statute, the Courts precedent, and the case law of other circuits that immigration status “cannot undermine all of the other considerations which uniformly support a finding that [the child] is ‘settled’ in the United States.” In re B. del C.S.B., 559 F.3d 999, 1010 (9th Cir. 2009); see Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012) (noting that “no court has held [immigration status] to be singularly dispositive”), aff’d sub nom. Lozano v. Montoya Alvarez, 572 U.S. 1 (2014); Alcala v. Hernandez, 826 F.3d 161, 174 (4th Cir. 2016) (same). It agreed with the District Court’s conclusion that Appellant met her burden of showing L.S. was well-settled in the United States.

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).