Aguilar Mendoza v. Silva

Filing 8

TEMPORARY RESTRAINING ORDER re 3 MOTION for Temporary Restraining Order. Motion Hearing set for 11/18/2013 09:00 AM in SC 3rd Fl Ct before Judge Mark W Bennett. Defendant is to surrender the minor childrens passports and all other travel documents to the Clerk of Court not later than 4:30 PM on the third business day after service of this Temporary Restraining Order. See text of Order for details. Clerk of Court shall permit plaintiffs counsel to access, review and photocopy the child rens passports upon surrender to the Clerk of Court by the defendant. The Court appoints Francisco Gonzalez as a Spanish interpreter for the plaintiff in this matter. The Clerk of Court shall notify Mr. Gonzalez of his appointment. Signed by Judge Mark W Bennett on 11/7/13. (djs) (eUSM for service w/complaint, summons and Order at docket no 5 ) (Interpreter notified)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MARIA GUADALUPE AGUILAR
MENDOZA,
No. C 13-4108-MWB
Plaintiff,
vs.
MOISES MEDINA SILVA,

TEMPORARY RESTRAINING
ORDER

Defendant.
___________________________
This case, brought pursuant to the Convention On Civil Aspects Of International
Child Abduction (the 1980 Hague Convention) and the International Child Abduction
Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610, is before me on the plaintiff’s
November 7, 2013, Motion Under The Hague Convention For Entry Of A Temporary
Restraining Order And Scheduling Of An Expedited Hearing (docket no. 3). I have
reviewed plaintiff Maria Guadalupe Aguilar Mendoza’s Motion, her Verified Complaint
And Petition For Return Of The Children, and the exhibits and attachments to the
Verified Complaint, and I find that these submissions clearly show that immediate and
irreparable injury, loss, or damage will result to the plaintiff before the defendant can
be heard in opposition, such that issuance of a Temporary Restraining Order without
written or oral notice to the defendant or his attorney is appropriate in this case. See
FED. R. CIV. P. 65(b). Specifically, I find from Maria Mendoza’s submissions that it
reasonably appears that defendant Moises Medina Silva and/or members of his family
have retained custody in the United States of two of Maria Mendoza’s minor children,
K.G.M.A. and M.K.M.A., over whom she has physical custody under Mexican law,
without her acquiescence, away from the children’s habitual residence in Mexico, and

has brought them to the Northern District of Iowa. I find that, unless temporarily
enjoined from removing the children from this jurisdiction and temporarily enjoined to
surrender the children’s passports and all other travel documents to the Clerk of Court
pending final disposition of this matter, there is a risk that the children will be removed
from this jurisdiction, posing a threat of irreparable harm and injury to Maria Mendoza
and the children.
THEREFORE, consistent with the objects of the 1980 Hague Convention and the
ICARA for the expedited consideration of this matter, it is hereby ORDERED that
DEFENDANT MOISES MEDINA SILVA, his agents, servants, employees,
attorneys, or persons acting in active concert or participation with him who receive
actual notice of this order are TEMPORARILY ENJOINED, as follows:
1.

from removing or causing to be removed the minor children

K.G.M.A., born in 2007, and M.K.M.A., born in 2009, from the jurisdiction of this
Court pending final disposition of the Verified Complaint And Petition For Return Of
The Children and further Order of this Court;
2.

to surrender the minor children’s passports and all other travel

documents to the Clerk of Court at the United States Courthouse, 320 Sixth Street, in
Sioux City, Iowa, not later than 4:30 p.m. on the third business day after service of
this Temporary Restraining Order.
a.

The Clerk of Court shall retain possession of the minor children’s

passports and travel documents pending final disposition of the Verified
Complaint And Petition For Return Of The Children and further Order of this
Court;
b.

The Clerk of Court shall permit plaintiff’s counsel to access,

review, and photocopy the children’s passports upon surrender to the Clerk of
Court by the defendant;
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If the defendant fails to timely surrender the minor children’s passports and all other
travel documents, or removes the minor children or causes the minor children to be
removed from the jurisdiction of this Court, the Court shall issue a warrant for the
arrest of defendant Moises Medina Silva to be executed by the United States Marshals
Service and shall order defendant Moises Medina Silva to appear for a contempt
hearing.
3.

Notwithstanding the provisions of Rule 65(c), the Court finds that this

Temporary Restraining Order shall issue immediately, without bond or security, in
light of the nature of the conduct temporarily enjoined and the plaintiff’s in forma
pauperis status.
4.

This Temporary Restraining Order shall remain in full force and effect for

fourteen days from the date of this order, unless before that time, the Court, for
good cause, extends it for a like period or the defendant consents to a longer extension.
5.

The officers of the court shall issue and serve this Temporary Restraining

Order with the Verified Complaint And Petition For Return Of The Children.
IT IS FURTHER ORDERED,
1.

Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, the

trial of this action on the merits shall be advanced and consolidated with the preliminary
injunction hearing scheduled in paragraph (2), below.
2.

A consolidated trial on the merits and hearing on the plaintiff’s request

for a preliminary injunction and the Verified Complaint And Petition For Return Of
The Children is scheduled for Monday, November 18, 2013, at 9:00 a.m., at the
United States Courthouse, 320 Sixth Street, in Sioux City, Iowa.

At the

consolidated trial and hearing, the defendant shall show cause why the children should
not be returned to Mexico, accompanied by the plaintiff or the plaintiff’s designee, and
why the other relief requested in the Verified Complaint should not be granted. The
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Court has set aside time until 12:00 p.m. for this hearing.

If the parties require

additional time, they must notify Jennifer Gill, Judicial Assistant, at 712/233-3909 or
[e-mail].
3.

Defendant Moises Medina Silva, any counsel appearing for the defendant,

and counsel for the plaintiff shall personally appear at the consolidated trial and
hearing.
4.

Defendant Moises Medina Silva shall provide for and ensure the

personal appearance at the consolidated trial and hearing of the minor children
K.G.M.A. and M.K.M.A.
5.

Plaintiff Maria Guadalupe Aguilar Mendoza is permitted to appear at the

consolidated trial and hearing and any other court proceedings by telephone or video
conference in the event that she is unable to be physically present at any such
proceedings. Plaintiff’s counsel is responsible for coordinating arrangements for the
plaintiff’s appearance by telephone or video conference with Jennifer Gill, Judicial
Assistant, at 712/233-3909 or [e-mail].
6.

The Court concludes that appointment of an interpreter for the plaintiff is

appropriate in these proceedings, see FED. R. CIV. P. 43(d), but that a certified
interpreter is not required for these proceedings, which do not involve the United States
as a party. See 28 U.S.C. § 1827. The Court also concludes that the plaintiff must
bear the cost of an interpreter in the first instance, although, if the Court appoints and
sets the compensation for an interpreter, the interpreter’s compensation may be taxed as
costs. See FED. R. CIV. P. 43(d); 28 U.S.C. § 1920(6); Freier v. Freier, 985 F. Supp.
710, 713 (E.D. Mich. 1997) (ICARA case). The Court appoints Francisco Gonzalez of
Sergeant Bluff, Iowa (712/943-2669), as a Spanish interpreter for the plaintiff in this
matter, at the rate of $103.00 per half day, and $187.00 per full day. The Clerk of
Court shall notify Mr. Gonzalez of his appointment. If Mr. Gonzalez is unable to
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accept this appointment, the Clerk of Court shall notify the Court of the need to appoint
a different interpreter.
IT IS SO ORDERED.
DATED this 7th day of November, 2013.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
TIME: 2:08 p.m.

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