Gil-Leyva v. Leslie

Filing 68

ORDER granting 65 Second Motion for Stay of Execution of Orders. IT IS HEREBY ORDERED that the return Order 56 is STAYED pursuant to Federal Rule of Civil Procedure 62(c). HMG and HFG shall reside with Ms. Leslie in the State of Colorado pending resolution of Ms. Leslies appeal of the Order 56 to the Tenth Circuit Court of Appeals, by Magistrate Judge Kristen L. Mix on 6/12/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01406-KLM
HECTOR ARMANDO GIL-LEYVA,
Petitioner,
v.
SHENOA TALEESE LESLIE,
Respondent.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Respondent Shenoa Taleese Leslie’s Second
Motion for Stay of Execution of Orders [#65]1 seeking a stay of the Court’s Order [#56]
directing the return of minor children HMG and HFG to Canada pursuant to The Convention
on the Civil Aspects of International Child Abduction, done at The Hague on October 25,
1980 (the “Hague Convention”), and its implementing statute, the International Child
Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. For the reasons described
herein, the Motion [#65] is GRANTED.
On April 17, 2018, the Court ordered Respondent Shenoa Taleese Leslie (“Ms.
Leslie”) to return her two children HMG and HFG to Canada, where they were born and
where their father, Petitioner Hector Armando Gil-Leyva (“Mr. Gil-Leyva”), who proceeds

1

“[#65]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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as a pro se litigant in this action,2 lives. Order [#56]. On May 17, 2018, the Court stayed
this directive pending resolution of the present Motion. Minute Order [#66]. In the Motion
[#65], Ms. Leslie seeks a stay of the Court’s order to return HMG and HFG to Canada until
the Tenth Circuit Court of Appeals issues an opinion on her appeal of the undersigned’s
April 17, 2018 return Order [#56]. See Notice of Appeal [#58]. In the May 17, 2018 Minute
Order [#66], the Court directed Mr. Gil-Leyva to file a Response to the Motion [#65] seeking
a stay no later than May 29, 2018; however, no Response has been filed.
Pursuant to Federal Rule of Civil Procedure 62(c), “[w]hile an appeal is pending from
. . . final judgment that grants, dissolves, or denies an injunction, the court may suspend,
modify, restore, or grant an injunction on terms for bond or other terms that secure the
opposing party’s rights.” The Court applies four factors in considering whether to stay a
return order: “(1) whether the stay applicant has made a strong showing that [s]he is likely
to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 568 U.S. 165, 179
(2013). The party requesting a stay bears the burden of establishing her entitlement to
such relief. Nken v. Holder, 556 U.S. 418, 433-34 (2009).
Regarding the first factor, Ms. Leslie passionately argues that she will succeed on
the merits on her appeal. Motion [#65] at 8-12. The Court notes that Ms. Leslie appears

2

The Court must construe the filings of pro se litigants liberally. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his] behalf.”
See Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at
1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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to, at times, willfully misconstrue the undersigned’s statements in the Order [#56]. See,
e.g., id. at 11 (stating that the undersigned counseled Ms. Leslie to “break the law”); cf.
Order [#56] at 15-16 (suggesting actions Ms. Leslie could look into taking “[t]o the extent
permitted by Canadian law”); see also Warren v. Ryan, No. 15-cv-00667-MSK-MJW, 2015
WL 3542681, at *7 (D. Colo. June 5, 2015) (making substantially the same suggestions to
a respondent directed to return children to the father residing in another country, under the
Hague Convention and ICARA). Regardless, based on Ms. Leslie’s argument here, the
Court cannot find that Ms. Leslie has made a “strong showing” that she is “likely to succeed
on the merits.” See Chafin, 568 U.S. 179; see also Nken, 556 U.S. at 434 (stating that “[i]t
is not enough that the chance of success on the merits be better than negligible or that
success be a mere possibility” (internal quotation marks omitted)). This factor weighs
against imposition of a stay.
Regarding whether the applicant, i.e., Mr. Gil-Leyva, will be irreparably injured
absent a stay, see Chafin, 568 U.S. 179, there is no evidence beyond the emotional harm
to which he testified at the hearing. Given that Mr. Gil-Leyva did not file a Response to
provide any additional showing of harm, and given that appellate courts attempt to
adjudicate these cases as expeditiously as possible, see id., the Court finds that this factor
weights in favor of imposition of a stay.
Regarding whether issuance of the stay will substantially injure the other parties
interested in the proceeding, see id., there has been no evidence that the children HMG
and HFG will sustain any injury if permitted to stay with their mother, Ms. Leslie, while this
appeal is pending. See Motion [#65] at 12-13. Accordingly, this factor weighs in favor of
imposition of a stay.

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Regarding where the public interest lies, see Chafin, 568 U.S. 179, Ms. Leslie
essentially argues that there is such a significant danger of harm to the children if they are
returned to Canada that the public interest in protecting the children outweighs the public
interest in expeditiously returning children pursuant to the Hague Convention and ICARA.
Motion [#65] at 14-16. Plaintiff’s argument essentially relies on her assertion that the Court
erred in finding that insufficient evidence was presented to meet the standard of Plaintiff’s
“grave risk” affirmative defense. Regardless, given that Mr. Gil-Leyva has not filed a
Response in opposition to Plaintiff’s argument, and given that “shuttling children back and
forth between parents and across international borders may be detrimental to those
children,” see Chafin, 568 U.S. 179, the Court finds that this factor weighs in favor of
imposition of a stay.
Weighing the relevant factors, the Court concludes that staying the Court’s return
Order [#56] is appropriate pending resolution of Ms. Leslie’s appeal with the Tenth Circuit
Court of Appeals. Accordingly,
IT IS HEREBY ORDERED that the return Order [#56] is STAYED pursuant to
Federal Rule of Civil Procedure 62(c). HMG and HFG shall reside with Ms. Leslie in the
State of Colorado pending resolution of Ms. Leslie’s appeal of the Order [#56] to the Tenth
Circuit Court of Appeals.
Dated: June 12, 2018

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