La Salle v. Adams

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Kimberly Colin La Salle, No. CV-19-04976-PHX-DWL 10 Petitioner, ORDER 11 v. 12 Dominick Johnathan Adams, 13 Respondent. — 14 — 15 Kimberly Colin La Salle (“Mother”) and Dominick Johnathan Adams (“Father”) 16 are the parents of two minor children, E.N.A. and M.E.Y.A. (collectively, “the Children”). 17 On August 19, 2019, Mother filed an amended verified petition under the International 18 Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq., which implements 19 the provisions of the Hague Convention on the Civil Aspects of International Child 20 Abduction. (Doc. 6.) 21 In a nutshell, the petition contains the following allegations. Mother, a Canadian 22 citizen, and Father, a United States citizen, “lived together as husband and wife in Alberta, 23 Canada from April 2011 until their divorce in October of 2018.” (Id. ¶¶ 12, 13, 20.) The 24 Children were born in Canada in 2012 and 2013, respectively, and “have lived in Alberta, 25 Canada from the times of their respective births.” (Id. ¶¶ 9, 27.) Following the divorce in 26 October 2018, a Canadian court issued a custody order that “grant[ed] joint custody of the 27 Children”—specifically, “[t]he Children are to reside primarily with the [Father], and stay 28 with the [Mother] every other weekend during the school year, and every other week during 1 the summer.” (Id. ¶¶ 21-23.) However, in February 2019, Father “pulled the Children out 2 of school, moved out of his home in Alberta, Canada, and removed the Children to Sun 3 City, Arizona,” where they remain to this day. (Id. ¶ 28.) Mother has engaged in some 4 email correspondence with Father since the move, but he has “failed to provide . . . a firm 5 date of return for the Children” and “denied [Mother] her rights to access and 6 communication with the Children as required under the Custody Order.” (Id. ¶¶ 29-45.) 7 The petition seeks, among other things, an order “establishing that the Children shall 8 be returned to Alberta, Canada where an appropriate custody determination can be made 9 by a Canadian court under Canadian law.” (Id. at 9.) Additionally, Mother has filed an 10 amended application to proceed in forma pauperis (Doc. 7) and an ex parte motion 11 requesting (1) an expedited hearing, (2) an order compelling Father not to remove the 12 Children from the District of Arizona pending resolution of this dispute, (3) an order 13 compelling Father to “[s]urrender the Children’s passports to the Court,” and (4) an order 14 requiring the United States Marshals Service (“USMS”) to serve the petition on Father 15 (Doc. 9). 16 The Court rules on Mother’s requests as follows. First, Mother’s amended 17 application to proceed in forma pauperis (Doc. 7) will be granted.1 18 Second, because Mother has been granted leave to proceed in forma pauperis, she’s 19 also entitled to have the USMS effectuate service of the petition upon Father. See Fed. R. 20 Civ. P. 4(c)(3). Mother’s ex parte motion includes a request for USMS service (Doc. 9 at 21 2), so that request will be granted. 22 Third, to the extent Mother’s ex parte motion asks the Court to set an expedited 23 hearing, that request will be denied without prejudice. To be clear, the Court intends to 24 give this matter expedited consideration. See generally Lops v. Lops, 140 F.3d 927 , 944 25 (11th Cir. 1998) (“Article 11 of the Hague Convention contemplates an immediate 26 1 The original version of Mother’s application to proceed in forma pauperis identified the Children by name (instead of by their initials). (Doc. 2.) Accordingly, on August 16, 27 2019, the Court issued an order granting the original application but also sealing it and ordering Mother to file a redacted version. (Doc. 5.) Given this backdrop, it’s unclear 28 whether it’s necessary to formally “grant” Mother’s amended application. Nevertheless, in an abundance of caution, the Court will do so. 1 emergency hearing in international child abduction cases and a judicial decision within six 2 weeks.”); Martinez-Castaneda v. Haley, 2013 WL 12106712 , *4 (W.D. Tex. 2013) (“The 3 treaty contemplates that a case for the return of a child will be decided expeditiously. After 4 a period of six weeks has passed from the time of filing of the case, the State Department 5 may inquire of the court handling the case to provide reasons for the delay in disposing of 6 the case.”). However, before setting a discovery, briefing, and hearing schedule, Mother 7 must demonstrate that Father is aware of the proceedings. See 22 U.S.C. § 9003 (c) 8 (“Notice of an [ICARA action] shall be given in accordance with the applicable law 9 governing notice in interstate child custody proceedings.”); 28 U.S.C. § 1738A(e) (“Before 10 a child custody or visitation determination is made, reasonable notice and opportunity to 11 be heard shall be given to the contestants, any parent whose parental rights have not been 12 previously terminated and any person who has physical custody of a child.”). Thus, the 13 case can’t proceed until the USMS is able to effectuate service upon Father. Cf. Ebanks v. 14 Ebanks, 2007 WL 2591196 , *3 (S.D.N.Y. 2007) (“ICARA . . . provides the method for 15 service in Hague Convention proceedings: ‘in accordance with the applicable law 16 governing notice in interstate child custody proceedings.’ Therefore, Petitioner needed to 17 serve his petition papers upon Respondent in accordance with [state] law.”) (citation 18 omitted). Once Father is properly served, the Court will hold a status conference to solicit 19 the parties’ input on how to proceed. 20 Fourth, to the extent Mother’s ex parte motion asks the Court to issue an order 21 compelling Father to surrender the Children’s passports and to keep the Children in 22 Arizona until these proceedings are completed, that request—which the Court construes as 23 a request for a temporary restraining order (“TRO”)—also will be denied without 24 prejudice. A request for a TRO is analyzed under the same standards as a request for a 25 preliminary injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 26 832 , 839 n.7 (9th Cir. 2001). “A preliminary injunction is ‘an extraordinary and drastic 27 remedy, one that should not be granted unless the movant, by a clear showing, carries the 28 burden of persuasion.’” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citation 1 and emphasis omitted); see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 , 24 2 (2008) (citation omitted) (“A preliminary injunction is an extraordinary remedy never 3 awarded as of right”). A plaintiff seeking a preliminary injunction must show that (1) he 4 is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an 5 injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public 6 interest. Winter, 555 U.S. at 20 . “But if a plaintiff can only show that there are ‘serious 7 questions going to the merits’—a lesser showing than likelihood of success on the merits— 8 then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the 9 plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. 10 Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (citation omitted). Under this 11 “serious questions” variant of the Winter test, “[t]he elements . . . must be balanced, so that 12 a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 13 F.3d at 1072. 14 Here, Mother hasn’t shown a likelihood of irreparable harm in the absence of a TRO. 15 Specifically, Mother hasn’t presented any specific evidence suggesting that Father is likely 16 to flee from Arizona, taking the Children with him, in the absence of a TRO. Such a 17 showing is usually necessary to obtain a TRO in an ICARA matter. See, e.g., Morgan v. 18 Morgan, 289 F. Supp. 2d 1067, 1070 (N.D. Iowa 2003) (granting TRO where father 19 presented evidence that “it is the intention of [mother] to take the child out of Iowa in the 20 very near future; and that if a temporary restraining order is not issued ex parte, [mother] 21 will likely flee this jurisdiction with the child upon receiving notice of [father’s] intent to 22 seek a temporary restraining order preventing them from doing so”); Application of 23 McCullough on Behalf of McCullough, 4 F. Supp. 2d 411, 413 (W.D. Pa. 1998) (granting 24 TRO application where Canadian father presented evidence that mother had recently 25 stated, during a phone call, “that the ‘end time’ was near and that she and their children 26 would not be returning to Canada. [Father] understood the reference to the ‘end time’ as a 27 statement which related to his wife’s religious beliefs . . . that [her] sect . . . must be ready 28 to flee to Petra, Jordan if and when the church’s leader directs. Apparently, adherents || believe that only by escaping to Petra will God save them from an apocalyptic event.’’). 2|| Additionally, even if the Court were to grant the injunctive relief sought by Mother, it’s || unclear the injunction would have any practical effect because Father isn’t currently aware 4|| of these proceedings and TROs ordinarily must expire within 14 days of issuance. See Fed. || R. Civ. P. 65(b)(2). 6 Accordingly, IT IS ORDERED that: 7 (1) Mother’s amended application to proceed in forma pauperis (Doc. 7) is 8 || granted to the extent it is not moot; 9 (2) Mother’s ex parte motion (Doc. 9) is granted in part and denied in part. || Specifically, Mother’s request for USMS assistance in serving the petition on Father is 11 || granted, but Mother’s requests for an expedited hearing, for an order compelling the Children to remain in Arizona pending resolution of this dispute, and for an order 13 || compelling Father to surrender the Children’s passports are denied without prejudice; 14 (3) The Clerk of Court shall prepare the service packet, which includes the 15 || summons appearing at Document 11. The Clerk of Court is directed to deliver the packet 16 || to the USMS for service. Service shall be at government expense on Father by the USMS 17 || or an authorized representative. The USMS is instructed to personally serve upon Father, 18 || at the address listed on the summons, the amended petition and all attachments thereto (Doc. 6) and this Order. 20 (4) | Mother shall file a “Request for Status Conference” once the docket reflects that Father has been served by the USMS. 22 Dated this 20th day of August, 2019. — 23 — 24 7. _ 29 fi 26 United States District Judge — 27 — — 28 — _5-