UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Le-Mayne De-Niro Gayle Sawyers, NO. 7:22-cv-07153-KMK Petitioner, EB) ORDER GRANTING Ca ETITIONER’S EX PARTE T.R.O. v. OTION Fitzroy Alexander Wellington and Deneese Wellington, | (Hague Convention Action) Respondents.
Before the Court is the Ex Parte Expedited Motion for a Temporary Restraining Order (ECF No. 3) filed by Petitioner Le-Mayne De-Niro Sawyers (“Mother”) under Article 7(b) of 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. §§ 9001-9011. Having considered the record, the Court GRANTS Mother’s Motion, as further explained below. The Court schedules the preliminary injunction hearing for Woven 22 a United States Courthouse, stat 390 Qvainas s\ □ Analysis Lite Flaws, bY □□□□□ The Hague Convention is intended “secure the prompt return of children wrongfully removed t& or retained in Contracting State” and to<‘‘ensure that rights of custody and of access under the law d£ one Contracting State are effectively respected in the other Contracting States.” Ruiz v. Tenorio, 392X6.3d 1247, 1250N11th Cir. 2004). Esséxtially, the Convention seeks to preserve the status quo—th@xeturn of children their home countriesNor further proceedings. Id. (citing Shealy v. Shealy, 295 F.3dN117, 1121 (10th Cix.2002)). “As relevant\ere, the Convention provides that a child who was ‘wrongfully removed’ frdm his place of habittal residence in violation of a person’s custody rights must be returned to place unless certain ‘narrow
exceptions’ apply.” Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017). Thus, it is not the underlying custody case at issue Under the Convention, but whether the treaty requires a child to be returned hotke for custody proceedings. Ruiz, 392 F.3d at 1250 (“The cowrt’s inquiry is hmited to the merits of the\abduction claim an not the merits of the underlying custody battle.”); ee Ovalle v. Perez, 681 F. 777, 785—86\1 1th Cir. 2017). To accomplish the goal of maintaining the status quo, the Kourt is empowered \o take steps “to prevent future harm to the chyld or prejudice ty interested partiég by taking or causyng to be taken provisional measures.” Convention, art. 7(b)\see also 22 U.S.C. §9004(a) (allowing provisional measutes “to protect the well-being of the dhild involved or to prevent the child’s r removal or cdncealment before final disposition of the petitioh,”). An ex parte Temporary Restraining OMer is one such appropriate measure. fee, e.g., Mendoza Pascual, No. CV 61540, 2015 WL 2152837 (S.D. Ga. May 7, 2015); see also,\e.g., Vite-Cruz v. Synchez, No. 3:18-cv-01943-DCC, 2018 WL 6880514, at *14 (D.S.&. Dec. 19, 2018); Alcala v. Hernandez, No. 4:14\CV-4170,RBH, 2014 WL 5506339, at *9 (D.S.C. Odt. 30, 2014). he Ex P a Nace of Mother*s Request
Mother’s request for relief was heard\on an ex parte basiy. Based on Mother’s allegations and the findygs below, xelief without notice\to Respondents Fitzroy Alexander Wellington (“Father”) and D&peese Wellifgton Father (“FatheXs Wife”) is necessary to avoid immediate and irreparable injury, loSs, and/or damage if notice of the\proceedings was given prior to this Order. As required by Rule 65(b)(1)(A), Mother’s counsel has properly certified to the Court the reasons why notic&should not be required. Thus, the elements of Rule 65(b)(1) are met. i. The Temporary Restraining Order In determiting whether to grant injunctive relief, the district court must separately consider four factors:
(1) Whether there is a substantial likelihood that the claim will succeed on the merits; (2) whether irreparable harm will be suffered without the restraining order; (3) whether the potential injury to the 1m vant outweighs possible harm to the opposing party; and (4) whether the order would not be adverse to\the public interest. Trans¢on. Gas Pipe LinéCo., LLC v. 6.04 Acres, More or Léss, No. 16-17503, 2018 WL 6367239, at *19 (\ith Cir. Dec. 6, 2018). analysis of these faxtors establishes that provisional\measures (in the form of an ex parte tempo restraining order)\are authorized and necessary hete without the need for posting a bond. First, the Court finds that allowing the Father and Father’s Wife Respondents to flee with the Child would b&, by definition, irrepakable harm. Alcala, 2014 WL 5506739, at *6 (“The court observes that allowing the Father to flee with the Child is contrary to the very purpose of the Hague Convention and IC and would result in ityeparable harm.”). Second, the Court finds that any threatenéd harm to Father and Father’s\Wife is minimal as compared to the probability of irreparable h to Mother or the Child. A& explained in Mother’s memorandum in support of the motion presently before the Court, Mother is\not seeking a permanent custody order from this Court. Because\the Court cannot make 4 custody determination, the Court finds that Kather and Father’s Wife Sannot lose any custody rights from the Temporary Restraining Order. See\4bbot v. Abbot, 560 U.S\1, 20 (2010) (“Ordering a return remedy does not alter the existing allocation of custody rights, but does allow the courts of the home country to decide what is in the chila’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner.” (citations omitted)).
Third, the Court finds that Mother—at this stage in the proceedings and based on the record before thé, Court—has clearly demonstrated that she is likely to succeed on the merits. Mother’s evidence eStablishes that (1)\the Child’s habitual residence is Jamaica and was Jamaica immediately prior to the wrongfukretention; (2) Mother has “rights of custody” under Jamaican law; and (3) Mother was exercising his rights of custody and\would have continued doing so but for Mother’s wrongful retention of the Shild in the United States. ourth, public\policy supports issuakce of the TRO here. See doza, 2015 WL 2152837, at *7 (condluding that the public interest favoked granting the petitioner’s\request far preliminary injunctive relid{, which was\similar to the injunctive relief Mother seeks herk); see also Salguero □
v. Argueta, No. 5\7-CV-125-FL, 2017 WL 1067738, at *2 (E.D.N.C. Mar. 21,\2017) (“Finally, a TRO serves the public interest\ Since international ybduction [and] wrongful Yetention of [a] child[] is harmful to [h\s or her] well-being,’ a TRO in this case will serve the public interest by . protecting the child’s well-being.” (alterations in original)); Alcala, 2014 WL 5506739, at *9 (citing ICARA’s Congress al findings and concluding that “the public policy is not hindered, but is instead furthered, by the ordering of these provisional measures”). Il. Rule 65(c) bond requirement. In exercising its discretion, the Court ‘concludes that a bond is not required for the Temporary Restraining Order to be issued. “The amount of an injunction bond is within the sound discretion of the district court.” Transcon. Gas Pipe Line Co., 2018 WL 6367239, at *26 (quoting Carillon Imps., Ltd. v. Frank Pesce Int’l Grp. Ltd., 112 F.3d 1125, 1127 (11th Cir. 1997)). Mother -
is merely seeking a temporary order prohibiting Respondents from removing the Children from the jurisdiction, requiring Mother to relinquish the Children’s travel documents to the custody of the Court, and requiring an expedited hearing. Mother is not seeking a permanent custody order,
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Le-Mayne De-Niro Gayle Sawyers, NO. 7:22-cv-07153-KMK Petitioner, EB) ORDER GRANTING Ca ETITIONER’S EX PARTE T.R.O. v. OTION Fitzroy Alexander Wellington and Deneese Wellington, | (Hague Convention Action) Respondents.
Before the Court is the Ex Parte Expedited Motion for a Temporary Restraining Order (ECF No. 3) filed by Petitioner Le-Mayne De-Niro Sawyers (“Mother”) under Article 7(b) of 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. §§ 9001-9011. Having considered the record, the Court GRANTS Mother’s Motion, as further explained below. The Court schedules the preliminary injunction hearing for Woven 22 a United States Courthouse, stat 390 Qvainas s\ □ Analysis Lite Flaws, bY □□□□□ The Hague Convention is intended “secure the prompt return of children wrongfully removed t& or retained in Contracting State” and to<‘‘ensure that rights of custody and of access under the law d£ one Contracting State are effectively respected in the other Contracting States.” Ruiz v. Tenorio, 392X6.3d 1247, 1250N11th Cir. 2004). Esséxtially, the Convention seeks to preserve the status quo—th@xeturn of children their home countriesNor further proceedings. Id. (citing Shealy v. Shealy, 295 F.3dN117, 1121 (10th Cix.2002)). “As relevant\ere, the Convention provides that a child who was ‘wrongfully removed’ frdm his place of habittal residence in violation of a person’s custody rights must be returned to place unless certain ‘narrow
exceptions’ apply.” Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017). Thus, it is not the underlying custody case at issue Under the Convention, but whether the treaty requires a child to be returned hotke for custody proceedings. Ruiz, 392 F.3d at 1250 (“The cowrt’s inquiry is hmited to the merits of the\abduction claim an not the merits of the underlying custody battle.”); ee Ovalle v. Perez, 681 F. 777, 785—86\1 1th Cir. 2017). To accomplish the goal of maintaining the status quo, the Kourt is empowered \o take steps “to prevent future harm to the chyld or prejudice ty interested partiég by taking or causyng to be taken provisional measures.” Convention, art. 7(b)\see also 22 U.S.C. §9004(a) (allowing provisional measutes “to protect the well-being of the dhild involved or to prevent the child’s r removal or cdncealment before final disposition of the petitioh,”). An ex parte Temporary Restraining OMer is one such appropriate measure. fee, e.g., Mendoza Pascual, No. CV 61540, 2015 WL 2152837 (S.D. Ga. May 7, 2015); see also,\e.g., Vite-Cruz v. Synchez, No. 3:18-cv-01943-DCC, 2018 WL 6880514, at *14 (D.S.&. Dec. 19, 2018); Alcala v. Hernandez, No. 4:14\CV-4170,RBH, 2014 WL 5506339, at *9 (D.S.C. Odt. 30, 2014). he Ex P a Nace of Mother*s Request
Mother’s request for relief was heard\on an ex parte basiy. Based on Mother’s allegations and the findygs below, xelief without notice\to Respondents Fitzroy Alexander Wellington (“Father”) and D&peese Wellifgton Father (“FatheXs Wife”) is necessary to avoid immediate and irreparable injury, loSs, and/or damage if notice of the\proceedings was given prior to this Order. As required by Rule 65(b)(1)(A), Mother’s counsel has properly certified to the Court the reasons why notic&should not be required. Thus, the elements of Rule 65(b)(1) are met. i. The Temporary Restraining Order In determiting whether to grant injunctive relief, the district court must separately consider four factors:
(1) Whether there is a substantial likelihood that the claim will succeed on the merits; (2) whether irreparable harm will be suffered without the restraining order; (3) whether the potential injury to the 1m vant outweighs possible harm to the opposing party; and (4) whether the order would not be adverse to\the public interest. Trans¢on. Gas Pipe LinéCo., LLC v. 6.04 Acres, More or Léss, No. 16-17503, 2018 WL 6367239, at *19 (\ith Cir. Dec. 6, 2018). analysis of these faxtors establishes that provisional\measures (in the form of an ex parte tempo restraining order)\are authorized and necessary hete without the need for posting a bond. First, the Court finds that allowing the Father and Father’s Wife Respondents to flee with the Child would b&, by definition, irrepakable harm. Alcala, 2014 WL 5506739, at *6 (“The court observes that allowing the Father to flee with the Child is contrary to the very purpose of the Hague Convention and IC and would result in ityeparable harm.”). Second, the Court finds that any threatenéd harm to Father and Father’s\Wife is minimal as compared to the probability of irreparable h to Mother or the Child. A& explained in Mother’s memorandum in support of the motion presently before the Court, Mother is\not seeking a permanent custody order from this Court. Because\the Court cannot make 4 custody determination, the Court finds that Kather and Father’s Wife Sannot lose any custody rights from the Temporary Restraining Order. See\4bbot v. Abbot, 560 U.S\1, 20 (2010) (“Ordering a return remedy does not alter the existing allocation of custody rights, but does allow the courts of the home country to decide what is in the chila’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner.” (citations omitted)).
Third, the Court finds that Mother—at this stage in the proceedings and based on the record before thé, Court—has clearly demonstrated that she is likely to succeed on the merits. Mother’s evidence eStablishes that (1)\the Child’s habitual residence is Jamaica and was Jamaica immediately prior to the wrongfukretention; (2) Mother has “rights of custody” under Jamaican law; and (3) Mother was exercising his rights of custody and\would have continued doing so but for Mother’s wrongful retention of the Shild in the United States. ourth, public\policy supports issuakce of the TRO here. See doza, 2015 WL 2152837, at *7 (condluding that the public interest favoked granting the petitioner’s\request far preliminary injunctive relid{, which was\similar to the injunctive relief Mother seeks herk); see also Salguero □
v. Argueta, No. 5\7-CV-125-FL, 2017 WL 1067738, at *2 (E.D.N.C. Mar. 21,\2017) (“Finally, a TRO serves the public interest\ Since international ybduction [and] wrongful Yetention of [a] child[] is harmful to [h\s or her] well-being,’ a TRO in this case will serve the public interest by . protecting the child’s well-being.” (alterations in original)); Alcala, 2014 WL 5506739, at *9 (citing ICARA’s Congress al findings and concluding that “the public policy is not hindered, but is instead furthered, by the ordering of these provisional measures”). Il. Rule 65(c) bond requirement. In exercising its discretion, the Court ‘concludes that a bond is not required for the Temporary Restraining Order to be issued. “The amount of an injunction bond is within the sound discretion of the district court.” Transcon. Gas Pipe Line Co., 2018 WL 6367239, at *26 (quoting Carillon Imps., Ltd. v. Frank Pesce Int’l Grp. Ltd., 112 F.3d 1125, 1127 (11th Cir. 1997)). Mother -
is merely seeking a temporary order prohibiting Respondents from removing the Children from the jurisdiction, requiring Mother to relinquish the Children’s travel documents to the custody of the Court, and requiring an expedited hearing. Mother is not seeking a permanent custody order,
nor is she seeking to permanently limit Mother’s ability to travel. Therefore, the Court declines to require Mother to post a bond. IV. Expediting the Proceedings Finally, the Court finds that expedited proceedings are necessary and proper here. See Convention, arts. 2 and 11; 22 U.S.C. § 9001(a)(4). Therefore, the Court orders that Father and Father’s Wife shall respond in writing to the Verified Petition by uy] IS 22 □ ten days from the date of the hearing set forth above. See Fed. R. Civ. P. 16. Sem. tN □□□□□□□ d Botkin, Ae Pan's Gre), thy ordi Inst be mack 4, Spm □ ify For the reasons set forth above, it is ORDERED that Mother’s Ex Parte Expedited Motion for Temporary Restraining Order (ECF No. 3) is GRANTED, as follows: (a) Respondents Fitzroy Alexander Wellington and Deneese Wellington—or any others acting on their behalf—are PROHIBITED from removing the Child, J.J.W, from New York pending the preliminary injunction hearing scheduled below; (b) A preliminary injunction hearing to determine whether this Temporary Restraining Order will be converted to a preliminary injunction under Rule 65 is scheduled for Rovers Ly 22. , 2022, in Courtroom Number 2} of the United States Courthouse, 260 eit before the Honorable Cenn eth (in ‘ Lars (C Fitzroy Alexander Wellington and Deneese Wellington are ORDERED to appear with the Child, J.J.W., at this hearing to show cause why they should not be prohibited from removing the Children from the jurisdiction until this litigation is concluded. (d) e United States Marshal shall e Fitzroy Alexander Wellington and Deneese Wellington with precess by personally delivering a c of the Summsas, Amende Verified Expeckted Petition, this porary Restraiging Order, and aN.other documents.on file with this Court to them.
(e) Father and Father’s Wife shall respond in writing to the Verified Petition by 12] 3 , ten days from the date of the hearing set forth above.
rut 1G nf > United States District Court Judge
12:SS_ p.m., November □□ , 2022. wae Plas New York