Sebastian Guenther v. Elizabeth Victoria Mcpherson

• Court: District Court, S.D. Florida
• Decided: October 20, 2025
• Docket: 0:25-cv-61838
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 25-CV-61838-DAMIAN/VALLE

SEBASTIAN GUENTHER,

Plaintiff,

v.

ELIZABETH VICTORIA MCPHERSON,

Defendant. _________________________________________

R EPORT AND RECOMMENDATION TO DISTRICT JUDGE THIS MATTER is before the Court upon Petitioner’s Ex Parte Motion Under the Hague Convention Requesting Injunctive Relief, for Entry of a Temporary Restraining Order, for Warrant Seeking Physical Custody of Minor Child, and Scheduling an Expedited Hearing (ECF No. 3) (the “Motion”). U.S. District Judge Melissa Damian referred the matter to the undersigned “to take all action necessary in connection with case, including hearings and taking evidence, for rulings on all non-dispositive matters and for issuance of a Report and Recommendation on any dispositive matters.”1 (ECF No. 5). On October 1, 2025, the District Judge adopted the undersigned’s recommendation for the issuance of an initial temporary restraining order (“TRO”) requiring, among other things, that Respondent and Child be ordered to remain in the Southern District of Florida pending resolution of this action. See (ECF No. 9) (the “initial R&R”); see also (ECF No. 11). Pursuant to Federal

1 Although the Motion involves a pretrial matter, a Magistrate Judge does not have jurisdiction to finally determine a motion for injunctive relief. 28 U.S.C. § 636(b)(1)(A). Rather, upon referral, a Magistrate Judge may enter a recommendation for the District Judge’s consideration. 28 U.S.C. § 636(b)(1)(B). Rule 65(b)(2), the TRO expired on October 15, 2025—14 days from the date that it was issued by the District Judge. See Fed. R. Civ. P. 65(b)(2). Thus, the undersigned required Petitioner to file a Status Report. See (ECF No. 13). According to the Status Report, although the U.S. Marshal has attempted service on Respondent, service has not yet been properly effectuated, and

Respondent may be evading service. See (ECF No. 14). Accordingly, the undersigned finds that good cause exists to issue a new TRO supported by the Motion and the record in this case. Moreover, the hearing currently scheduled for October 24, 2025 will be rescheduled to a future date once Respondent has been served or upon Petitioner’s motion for hearing. Relatedly, courts should take steps to decide these cases as expeditiously as possible for the sake of the children and parents. Chafin v. Chafin, 742 F.3d 934, 936 (11th Cir. 2013). Thus, the Hague Convention contemplate a six-week time frame from the initial filing of the petition to a decision regarding the child’s return. Id. Respondent filed his Petition on September 12, 2025. See (ECF No. 1). The recommended six-week period expires on October 24, 2025. For the reasons set forth above and incorporating the initial R&R by reference, the

undersigned respectfully recommends that: 1. The District Judge issue a new TRO to expire within 14 days of the date of issuance, unless otherwise extended to by the parties; and 2. The Court require that, prior to the expiration of the new TRO: (i) the U.S. Marshal continue to attempt to serve Respondent with all filings in this case, including this Report and the initial R&R; and (ii) Petitioner file a Supplemental Status Report including: (a) evidence by affidavit/declaration from the U.S. Marshal regarding its efforts to serve Respondent; and (b) advising the Court of the necessary next steps if Respondent cannot be served and/or is evading service, i.e., whether Petitioner can seek an ex parte preliminary injunction, sanctions, or other relief to expeditiously proceed in this action. Lastly, Because this proceeding is currently ex parte, the undersigned has not established an objections period within which Respondent can file objections pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Rule 4(b). Ifthe District Court adopts this Report and issues a new TRO, Respondent would have an opportunity to file any objections she might have at that time. DONE AND ORDERED at Chambers, in Fort Lauderdale, Florida, on October 20, 2025.

ALICIAO.VALLE UNITED STATES MAGISTRATE JUDGE ce: U.S. District Judge Melissa Damian All counsel of record