United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion for
temporary restraining order (“TRO”). (DE 18). For
the reasons stated herein, plaintiff's motion for TRO is
granted. The court has expedited consideration of this
brings this case under the Hague Convention on the Civil
Aspects of International Child Abduction (the “Hague
Convention) and the International Child Abduction Remedies
Act (“ICARA”), 22 U.S.C. §§ 9000-9011,
seeking return of his five-year old daughter, S.M.M.F. (the
“child”) to El Salvador, her home country.
initiated this action on September 30, 2016, in the Southern
District of Texas, by filing a petition for the return of the
child (the “Hague petition”) and petition for
immediate issuance of a show cause order. (DE 1). That same
date, petitioner also moved for expedited show cause hearing
on his petition for return of the child, which the court
granted by order dated October 4, 2016. The October 4, 2016,
order required respondent to appear for hearing set October
11, 2016.The order also required respondent to
surrender all passports issued in her name and the
child's name and prohibited either party from removing
the child from its jurisdiction, pending hearing on the
merits of Hague petition.
unsuccessfully trying to locate respondent, plaintiff moved
to extend service time through March 31, 2017, which motion
the court granted on January 19, 2017. On or around January
24, 2017, petitioner learned that respondent and the child
were living in Raleigh, North Carolina. Thereafter,
petitioner moved to transfer the case to this court, pursuant
to 28 U.S.C. § 1404(a). The court granted
petitioner's motion and the case was transferred to this
court on March14, 2017.
March 20, 2017, petitioner filed a first amended verified
petition (the “amended Hague petition”). That
same date plaintiff filed the instant expedited ex parte
motion for TRO and motion to withdraw counsel. Petitioner
seeks a TRO from the court 1) prohibiting defendant from
removing the child from this jurisdiction, 2) taking into
safe keeping any and all of the child's travel documents,
including her passport and American visa, and 3) requiring
defendant to appear with the child for expedited hearing on
the merits of the amended Hague petition.
in 2011, S.M.M.F. was born in San Salvador, El Salvador.
After the child was born, the family continued to reside in
El Salvador. In August 2012, the parties informally
separated. During that time, the child lived with respondent,
still in El Salvador. In 2014, the parties legally separated.
A year later, in February 2015, the parties divorced. The
divorce decree gives respondent personal care, or physical
custody, of the child. The decree also gives the parties
joint parental authority, or parental rights, over the child.
This authority includes the right to determine jointly where
the child lives.
January 18, 2015, the Second Judicial Family Court in El
Salvador entered an order allowing respondent to take the
child to the United States to visit Disney World. The order
required the child to return to El Salvador by October 3,
2015. The court issued the child a passport for this purpose.
to petitioner, on November 2, 2015, respondent and the child
traveled from San Salvador, El Salvador to Houston, Texas.
Respondent and the child were scheduled to return to El
Salvador on November 19, 2015. However, respondent and the
child never returned. Thereafter, petitioner attempted
unsuccessfully to locate respondent and secure voluntary
return of the child. On January 5, 2016, petitioner applied
for assistance to secure return of the child under the Hague
Convention with the Central Authority. This action followed.
prevent immediate and irreparable harm pending judicial
resolution of a dispute, Federal Rule of Procedure 65(b)
grants courts authority to enter a TRO. Fed.R.Civ.P. 65(b);
See Grupo Mexicano de Desarrollo S.A. v. Alliance Bond
Fund, Inc. 527 U.S. 308, 341 (1999) (observing that
preliminary orders are designed to prevent events “that
would render a court's judgment worthless”);
Granny Goose Foods, Inc. v. Brotherhood of Teamsters and
Auto Trick Drivers Local No. 70 of Alameda Cty., 415
U.S. 423, 449 (1974) (noting that even “[e]x parte
temporary restraining orders are no doubt necessary”
for the “underlying purpose of preserving the status
quo and preventing irreparable harm just so long as is
necessary to hold a hearing, and no longer”).
Rule 65(b), a court may issue a TRO “without written or
oral notice to the adverse party . . . only if . . . specific
facts in an affidavit or verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in
opposition.” Fed.R.Civ.P. 65(b)(1)(A). The Rule also
requires “the movant's attorney [to] certif[y] in
writing any efforts made to give notice and the reasons why
it should not be required.” Fed.R.Civ.P. 65(b)(1)(B).
To obtain a TRO or preliminary injunction, a movant must also
establish 1) that he is likely to succeed on the merits; 2)
that he is likely to suffer irreparable harm in the ...