Diaz Quezada v. Campos Salzar

Filing 28

ORDER DISMISSING CASE The Petition ECF No. 1 is DISMISSED WITHOUT PREJUDICE for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b); The Clerk shall close the case and enter judgment in favor of Defendant; Each party shall bear his or her own costs, by Judge William J. Martinez on 2/7/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1519-WJM-KMT
KARLA LILIANA DIAZ QUEZADA,
Petitioner,
v.
ELOY FABIAN CAMPOS SALZAR and concerning the minor child MIA CAMPOS DIAZ,
Respondent.

ORDER DISMISSING CASE WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE

On June 13, 2013, Petitioner Karla Liliana Diaz-Quezada (“Petitioner”) filed an
Application for Return of Minor Child pursuant to The Convention on the Civil Aspects
of International Child Abduction signed at The Hague, Netherlands on October 25, 1980
(“Hague Convention” or “Convention”). (ECF No. 1.) The Court held a non-evidentiary
hearing on July 9, 2013 and set an evidentiary hearing on the Petition for November 8,
2013. (ECF Nos. 13 & 18.) Because Petitioner was unable to secure a visa to travel to
the United States for the hearing, the Court rescheduled the evidentiary hearing for
December 20, 2013, and allowed the Petitioner to testify by videoconference or
telephone. (ECF No. 19.) Due to scheduling issues with regard to a translator for
Petitioner in Mexico, the Court reset the instant evidentiary hearing for January 31,
2014. (ECF No. 23.)
On January 31, 2014, Vincent Rahaman, Petitioner’s counsel, represented to the
Court that his last contact with the Petitioner was in November 2013. Mr. Rahaman

stated that his assistant, who speaks fluent Spanish, had placed over sixteen calls to
the Petitioner’s individual cellphone, her sister’s cellphone, and her family’s contact
number. Mr. Rahaman’s office reached out to Petitioner over Facebook, and through
the Mexican Central Authority, but was unable to reach her. Because counsel had
been unable to communicate with the Petitioner, Mr. Rahaman asked the Court to take
one of four options: (1) dismiss the Petition without prejudice; (2) hold the Petition in
abeyance for some period of time; (3) rule on the pleadings and evidence previously
submitted to the Court; or (4) go forward with the evidentiary hearing without the
Petitioner’s testimony.
The Court responded that it would not rule on the pleadings because, based on
its review of the issues, the key determination of the child’s habitual residence would
turn on the intent of the parties at various points. The parties’ submissions were
conflicting with regard to their intent, and the Court expressed its belief that intent
cannot be judged on the papers. The Court also found that it would not be in
Petitioner’s interest for the case to go forward without her testimony. Instead, the Court
reset the evidentiary hearing for one week later—February 7, 2014—to give Mr.
Rahaman one more week to attempt to ascertain whether Petitioner wished to continue
with this case. The Court informed Mr. Rahaman that, if he could not reach his client
within that time frame, it would dismiss the case without prejudice. (ECF No. 26.)
On February 6, 2014, Mr. Rahaman’s office called the Court to inform it that he
was unable to get in touch with the Petitioner. The Court vacated the evidentiary
hearing based on this communication. (ECF No. 27.) For the reasons set forth below,
the Court dismisses this case without prejudice based on Petitioner’s failure to
2

prosecute this action.
A trial court may, on motion of a defendant or on its own motion, dismiss an
action for failure of the plaintiff to prosecute it with reasonable diligence. Fed. R. Civ. P.
41(b); see also Link v. Wabash R. Co., 370 U.S. 626 (1962). Such a dismissal is within
the trial court’s sound discretion, and must be based on the unique procedural history of
each case. S.E.C. v. Power Res. Corp., 495 F.2d 297, 298 (10th Cir. 1974).
Petitioner’s failure to stay in contact with her attorney, and her failure to respond to his
diligent efforts to assist her with prosecution of this action, shows a clear abandonment
of her claims. The Court has given Petitioner multiple opportunities to be heard on the
merits of her claims, but she has chosen not to participate. Having considered all of the
circumstances of this case, the Court finds that dismissal without prejudice is
appropriate. Because the Court’s dismissal is without prejudice, Petitioner is not
precluded from reinstituting this action if she so desires.
Accordingly, the Court ORDERS as follows:
1.

The Petition (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b);

2.

The Clerk shall close the case and enter judgment in favor of Defendant;

3.

Each party shall bear his or her own costs.1

1

The Court recognizes that there is a presumption in favor of awarding costs to the
prevailing party. See Fed. R. Civ. P. 54(d). However, were the Court to tax costs against
Petitioner, Mr. Rahaman would likely end up bearing that burden because he is unable to get in
touch with the Petitioner. Mr. Rahaman is representing Petitioner pro bono in this case, and
has advocated zealously on her behalf, even after it became clear that she no longer wished to
pursue this action. In these circumstances, the Court finds that taxing costs against the
Petitioner would be inequitable. See Cantrell v. Int’l Bhd. of Elec. Workers, 69 F.3d 456, 459
(10th Cir. 1995) (outlining instances in which the Court may decline to award costs).

3

Dated this 7th day of February, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

4