Margain v. Ruiz-Bours

Filing 44

ORDER that Pending before the Court is Respondent Elsa Ruiz-Bours' Ex Parte Motion/Request for Clarifying Order (Doc. 40 ) and Petitioner Mauricio Margain's Motion to Strike (Doc. 42 ). It is Ordered both motions are DENIED (Docs. 40 , 42 ). Signed by Senior Judge Raner C Collins on 4/17/2019. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mauricio Fernandez Margain,
Petitioner,

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Elsa Lourdes Ruiz-Bours,

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ORDER

v.

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No. CV-13-01162-TUC-RCC

Respondent.

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Pending before the Court is Respondent Elsa Ruiz-Bours’ Ex Parte Motion/Request

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for Clarifying Order (Doc. 40) and Petitioner Mauricio Margain’s Motion to Strike (Doc.

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42). Respondent filed a response to the Motion to Strike, but no other filings have been

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entered. The Court will deny Ruiz-Bours’ motion because any opinion by the Court would

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be advisory. However, the Court sees no need to strike the motion from the record.

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Procedural History

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On January 22, 2014, after a three-day bench trial, this Court denied Margain’s

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Petition for Return of Minor Child (Doc. 1), which asked the Court to order the return of

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Margain and Ruiz-Bours’ child to Margain in Mexico. (Doc. 28.) The Court found that as

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a matter of law, the child had not been unlawfully removed by Ruiz-Bours to the United

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States in violation of the Hague Convention because the child was a habitual resident of

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the United States. Id. at 7-10. Furthermore, the Court determined returning the child to

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Mexico was not warranted under the Hague Convention because Margain had not brought

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his claim in District Court until over one year after the child’s removal and the child was

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well settled in the United States. Id. at 11-12. The Court stated, “the child will not be

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returned to Mexico. The child remains in the custody of Respondent until such time as

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custody of the child is determined by a court of competent jurisdiction.” Id. at 13 (emphasis

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added). The Court dismissed this case with prejudice. Id. at 13. Margain appealed the

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Court’s determination, but the Ninth Circuit affirmed the Court’s decision in a

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memorandum opinion on March 3, 2015. (Doc. 39-1.)

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Instant Motions

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Ruiz-Bours filed the instant Motion for Clarification alleging that Margain had

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subsequently filed for custody in the 2nd Family Law Court in Tijuana, Baja California,

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Mexico (“Tijuana Court”). (Doc. 40 at 2, ¶3.) The Tijuana Court granted him custody in

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September 2014. Id. at ¶4. Ruiz-Bours alleges that Margain also filed for custody in Pima

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County Superior Court (“State Court”) but was denied. Id. at ¶¶5-6. She claims Margain

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removed the child to Mexico in violation of the State Court’s order. Id. at 2, ¶¶7-8.

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However, the Tijuana Court’s order was subsequently reversed by the Supreme Court of

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Justice of the Nation of Mexico (“Supreme Court of Mexico”), with an order to return the

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child to Ruiz-Bours on August 22, 2018. Id. at 3, ¶¶10-11. Margain asked the Pima County

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Court to enter an order stating it had no jurisdiction over the custody determination. Id. at

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3 ¶13; 6. Ruiz-Bours is fearful that if the State Court ultimately rules that it does not have

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jurisdiction, Margain will not only have violated both the Supreme Court of Mexico’s order

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as well as the Order of this Court but he will be able to further prevent Ruiz-Bours from

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seeing her child. Id. at 4, ¶14-15. Ruiz-Bours asks this Court to issue an order clarifying

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that the child is a habitual resident of the United States and directing the return of her child.

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Id. at 12, ¶¶1-2.

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Margain argues that the Court should strike Ruiz-Bours’ Motion for Clarification

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because this case has been dismissed and no further filings are permitted, but he does not

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address or respond to Ruiz-Bours’ allegations. (Doc. 42.) The Court finds that Margain’s

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argument does not make striking the motion necessary.

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Nonetheless, the Court will deny the Motion for Clarification. The Court affirms

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that its January 22, 2014 Order states that the child was a habitual resident of the United

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States for the purposes of the Petition for Return of Minor Child. (Doc. 28 at 9-10.)

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However, the Court did not rule on any further custody matters. In fact, this Court ordered

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that Ruiz-Bours maintain custody of the child “until such time as custody of the child is

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determined by a court of competent jurisdiction.” Id. at 13. Ruiz-Bours concedes that

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custody has been decided in the Tijuana Court and overturned in the Supreme Court of

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Mexico, and the State Court is currently determining whether it has jurisdiction to enforce

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custody. The Court’s Order does not extend to these proceedings. “[A] federal court has

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neither the power to render advisory opinions nor to decide questions that cannot affect the

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rights of litigants in the case before them.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975)

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(quotation marks and citations omitted). Any opinion in this case about the effect of this

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Court’s determination of “habitual residence” on proceedings either in Mexico or in the

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State Court would be advisory, and so the Court has no jurisdiction to enter such an order.

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Therefore, IT IS ORDERED both motions are DENIED. (Docs. 40, 42.)

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Dated this 17th day of April, 2019.

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