Farr v. Kendrick

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Michael Abraham Farr, No. CV-19-08127-PCT-DWL 10 Petitioner, ORDER 11 v. 12 Bonnie Jeanene Kendrick, 13 Respondent. [14] 15 Pending before the Court is Petitioner Michael Abraham Farr’s (“Father”) 16 “Emergency Motion to Transmit Exhibits to the 9th Circuit Court of Appeals.” (Doc. 84.) 17 For the following reasons, the motion will be denied. 18 BACKGROUND 19 This is a proceeding under the International Child Abduction Remedies Act 20 (“ICARA”), 22 U.S.C. § 9001 et seq. It was brought by Father in an attempt to compel his 21 ex-wife, Mother, to return their twin children to Mexico. (Doc. 1.) The Court held a three22 day evidentiary hearing on June 12-14, 2019. (Docs. 59, 61, 63.) During this hearing, 23 Mother and Father each offered various exhibits into evidence. (Docs. 66, 67 [exhibit 24 lists].) 25 On June 21, 2019, the Court issued an order denying Father’s petition. (Doc. 72.) 26 That same day, the Clerk of Court entered judgment (Doc. 73) and the Court issued an 27 order requiring the parties to retrieve their exhibits (Doc. 74). Specifically, the exhibit28 retrieval order provided that “the exhibits marked and/or admitted in the above-entitled 1 case are to be returned to the parties/agents of record. The parties/agents are directed to 2 retain custody of the exhibits until the case has been completely terminated, including all 3 appeals.” (Doc. 74.) This order further provided that “the parties are to remove the exhibits 4 . . . by July 22, 2019, or the Clerk may destroy or otherwise dispose of those exhibits.” 5 (Id.) 6 On June 28, 2019, Father filed a notice of appeal to the Ninth Circuit. (Doc. 76.) 7 On August 5, 2019, the Court issued another order related to exhibit retrieval. This 8 order began by explaining that, although the parties had previously been told they needed 9 to retrieve their exhibits by July 22, 2019, “[a]s of this date, neither party has arranged to 10 remove their respective exhibits from the custody of the Clerk of Court.” (Doc. 83.) Thus, 11 the Court gave the parties another warning: “[T]he parties’ marked and/or admitted exhibits 12 will be destroyed by the Clerk of Court on August 12, 2019, unless the parties contact this 13 Court’s clerk . . . to arrange for pick up of said exhibits.” (Id.) 14 On August 8, 2019, Father filed the motion that is now pending before the Court. 15 (Doc. 84.) It is entitled “Emergency Motion to Transmit Exhibits to the 9th Circuit Court 16 of Appeals.” (Id.) In its body, it states: “Pursuant to Federal Rule of Civil Procedure 79 17 ‘Records Kept by the Clerk’ and Local Rule 79.1(b), Petitioner Michael Abraham Farr 18 respectfully requests all nonelectronically submitted exhibits (including compact discs) for 19 both parties be transmitted to the 9th Circuit Court of Appeals.” (Id.) 20 Between August 9-12, 2019, Father made several ex parte contacts with the Court 21 in which he stated he had arranged for a courier to retrieve his exhibits by the close of 22 business on August 12, 2019. However, as of the morning of August 13, 2019, no courier 23 had contacted the Court. 24 DISCUSSION 25 Both this Court and the Ninth Circuit have promulgated rules addressing the 26 retention and transmission of exhibits following trial. On the one hand, the advisory 27 committee note to Circuit Rule 27-14 explains that “[t]he parties should be aware that 28 frequently this Court does not have access to trial exhibits because the district courts 1 typically return them to the parties” and thus suggests that “[t]he parties may consider 2 including portions of relevant documentary exhibits that were admitted and/or offered and 3 excluded in the excerpts of record.” Similarly, one of this Court’s local rules—LRCiv 4 79.1(a)—provides that “[a]ll non-electronically submitted exhibits offered by a party in 5 civil or criminal proceedings, whether or not received as evidence, shall be retained after 6 trial by the party or attorney offering the exhibits, unless otherwise ordered by the Court.” 7 And another one of this Court’s local rules—LRCiv 79.1(c)— provides that “[i]f any party, 8 having received notice from the Clerk concerning the removal of non-electronically 9 submitted exhibits . . . , fails to do so within thirty (30) days from the date of such notice, 10 the Clerk may destroy or otherwise dispose of those exhibits . . . .” All of these authorities 11 are consistent with the approach the Court has followed in this case—the parties must 12 retrieve their exhibits after trial and are responsible for including copies of any important 13 exhibits in their excerpts of record. 14 On the other hand, Circuit Rule 11-4.2, entitled “Retention of Physical Exhibits in 15 the District Court,” provides that “[f]or any exhibits not otherwise available on the 16 electronic district court docket, all physical and documentary exhibits in all cases shall be 17 retained in the district court until the mandate issues unless requested by the Court of 18 Appeals.” Although this rule is consistent in some respects with the authorities discussed 19 above—none of them suggest that trial exhibits simply get shipped en masse to the Ninth 20 Circuit whenever an appeal has been taken—it is arguably inconsistent with them because 21 it suggests the entity responsible for retaining custody of trial exhibits while an appeal is 22 pending is the district court, not the parties. 23 Finally, yet another one of this Court’s local rules—LRCiv 79.1(b)—provides that 24 “[i]n the event an appeal is prosecuted by any party, each party to the appeal shall promptly 25 file with the Clerk any non-electronically submitted exhibits to be transmitted to the 26 appellate court as part of the record on appeal. Those exhibits not transmitted as part of 27 the record on appeal shall be retained by the parties who shall make them available for use 28 by the appellate court upon request.” It is this local rule that provides the basis for Father’s 1 pending motion. 2 The Court declines to grant Father’s motion because it would result in the Clerk of 3 Court shipping all of the exhibits in this matter to the Ninth Circuit, even though the Ninth 4 Circuit hasn’t requested them. It seems clear from Circuit Rule 11-4.2 and the advisory 5 committee note to Circuit Rule 27-14 that this isn’t the correct outcome—the standard 6 operating procedure on appeal isn’t to ship all of the trial exhibits to San Francisco. 7 The remaining question is what to do with the exhibits. Although there is arguably 8 some tension between Circuit Rule 11-4.2 and the advisory committee note to Circuit Rule 9 27-14 about whether the custodian of the exhibits pending appeal should be the district 10 court clerk or the parties, it has been the longstanding practice of this Court to require the 11 parties to retrieve exhibits following trial. This practice is codified in LRCiv 79.1(a) and 12 (c) and is contemplated by the advisory committee note to Circuit Rule 27-14. See also 13 Bus. Forms Finishing Serv., Inc. v. Carson, 463 F.2d 966, 967 (7th Cir. 1971) (citing, with 14 approval, a local rule that required the parties to retain exhibits pending appeal); S.D. Cal. 15 LR 79.1(d) (“[E]very exhibit marked for identification or introduced in evidence and all 16 depositions and transcripts must be returned to the party who produced them at the 17 conclusion of the trial or hearing. It will be counsel’s responsibility to produce any and all 18 exhibits for the court of appeals, when requested by that court, if an appeal is taken . . . .”); 19 D. Mass. LR 79.1(a)(1) (“[A]ll exhibits marked in evidence or for identification shall 20 remain in the custody of the party that introduced them. Exhibits shall be preserved in the 21 form in which they were offered until the proceeding is finally concluded.”). 22 Thus, the Court will stick with the approach it announced in its earlier orders in this 23 case and require the parties to retrieve their exhibits. The Court will also give the parties 24 a final two-week extension, until August 27, 2019, to complete the retrieval. 25 … 26 … 27 … 28 … 1 Accordingly, IT IS ORDERED that: 2 (1) Father’s “Emergency Motion to Transmit Exhibits to the 9th Circuit Court 3|| of Appeals” (Doc. 84) is denied; and 4 (2) The parties’ marked and/or admitted exhibits will be destroyed by the Clerk 5|| of Court on August 27, 2019, unless the parties pick up the exhibits before August 27, 2019. 7 Dated this 13th day of August, 2019. [8] 9 L~ — 11 United States District Judge [28] -5-