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Alanis v. Reyes

United States District Court, N.D. Mississippi, Oxford Division

January 9, 2017

LOURDES GUADALUPE LORED ALANIS PLAINTIFF
v.
JOSE CARMEN BADILLO REYES DEFENDANT

          MEMORANDUM OPINION GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND SETTING PRELIMINARY INJUNCTION HEARING

         Presently before the Court is an expedited motion for preliminary relief and for an expedited hearing under the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") [8] filed by Petitioner Lourdes Guadalupe Lored Alanis ("Petitioner"). Petitioner's present motion shall be construed as a motion for a temporary restraining order and preliminary injunction hearing pursuant to Rule 65(b) of the Federal Rules of Civil Procedure. In her motion, Petitioner requests the following expeditious relief: an Order (a) prohibiting Respondent from removing the child from the jurisdiction of this Court and (b) setting a hearing upon the petition and commanding Respondent to appear before the Court with the child to show cause why she was allegedly unlawfully abducted and retained in the United States in alleged contravention of Mexican Law and the Hague Convention. Upon due consideration, the Court finds as follows.

         I. Factual and Procedural Background

         On November 21, 2016, Petitioner filed her petition [1] for return pursuant to the Hague Convention. Petitioner maintains that she is a citizen of Mexico; that Respondent Jose Carmen Badillo Reyes ("Respondent") is also a citizen of Mexico; and that the two are the parents of a daughter, DFB, who was born in Mississippi in September of 2007 and is a citizen of the United States. Pet. [1] ¶ 4. Petitioner further maintains that from September 2007 and December 2009, Petitioner, Respondent, and DFB lived in Horn Lake, Mississippi, but that in December of 2009, with the written consent of Respondent, Petitioner and DFB moved to Petitioner's family home in Ciudad Fernandez, San Luis Potosi, Mexico; that Petitioner and Respondent ceased being romantically involved; and that Respondent ceased all contact and support of DFB in 2012. Id. ¶ 5. Petitioner next maintains that from December 2009 to August 2016, DFB lived with Petitioner in Mexico. Id. ¶ 6. Petitioner avers that on August 14, 2016, Petitioner granted temporary authorization for DFB to travel with Respondent's sister, Anel G. Valdivia, from Mexico to Valdivia's home in Irving, Texas, and that Respondent subsequently discovered via Facebook that DFB was in Irving, Texas. Id. ¶ 7. Petitioner further avers that on August 31, 2016, Respondent traveled to Irving, Texas, took custody of DFB, and removed her to Horn Lake, Mississippi-all without the consent of Petitioner. Id. ¶ 8. Petitioner maintains that more than ten times she requested that Respondent return DFB to Petitioner in Mexico, but that Respondent refuses to respond to her requests and no longer answers the telephone when Petitioner calls from her phone number. Id. ¶ 9. Finally, Petitioner avers that she filed an application pursuant to the Hague Convention with the Mexican authorities on September 26, 2016. Id. ¶ 10.

         Petitioner requests that the Court enter an Order granting her preliminary relief by prohibiting the removal of the child from the jurisdiction of this Court. Petitioner further requests that the Court issue an order or orders commanding Respondent to voluntarily appear or be brought before the Court with the child to show cause for why the child has been kept from her mother, Petitioner, in alleged contravention of Mexican Law and the Hague Convention. On December 12, 2016, the Desoto County Sheriffs Department served Respondent with the petition. See Summons Returned Executed [7].

         II. Federal Rule of Civil Procedure 65(b) Standard

         According to Rule 65(b) of the Federal Rules of Civil Procedure,

[t]he court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a 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; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Fed. R. Civ. P. 65(b)(1). The Court may issue a temporary restraining order if the movant establishes "that [s]he is likely to succeed on the merits, that [s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in h[er] favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Furthermore, "[injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22, 129 S.Ct. 365.

         A. Likelihood of Success on the Merits

         First, under Rule 65(b), the Court must find that the Petitioner will likely succeed on the merits of her petition before granting the requested temporary restraining order and other relief. The petition has been filed pursuant to the Hague Convention and the International Child Abduction Remedies Act ("ICARA").

         "The Hague Convention was adopted to address the problem of international child abductions during domestic disputes." Berezowsky v. Ojeda, 765 F.3d 456, 465 (5th Cir. 2014) (citing Lozano v. Montoya Alvarez, __U.S.__, 134 S.Ct. 1224, 1228, 188 L.Ed.2d 200 (2014)). The objectives of the Hague Convention are: (1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State, " and (2) "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." Hague Convention, art. 1.

         "When evaluating a Hague Convention claim, we do not assess the merits of the underlying custody dispute. Rather, our inquiry is limited to determining whether or not the child has been wrongfully removed from their country of 'habitual residence.' " Berezovsky, 765 F.3d at 465. Therefore, the ultimate question before the Court is whether or not DFB has been wrongfully removed from her country of habitual residence by bringing her back to Mississippi. Because Petitioner filed this action under the Hague Convention, she must ultimately demonstrate by ...


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