Alvarez v. Magana Alvarez

Filing 54

MEMORANDUM AND ORDER re Motions in Liminedenying 36 MOTION in Limine to Exclude Respondent's Proposed Expert; denying 39 MOTION in Limine to Exclude Inadmissible Portions of Respondent's Article 14 Declaration. Signed by Judge Paula Xinis on 6/2/2017. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ENEDINA ALVAREZ
Plaintiff
vs.

Defendant
*

*
* CIVIL ACTION NO. PX-17-1010

JOSE CARMEN MAGANA ALVAREZ

*

*

*
*

*
*
*
*
*
MEMORANDUM AND ORDER RE: MOTIONS IN LIMINE

*

*

The Court has before it Petitioner’s Motion in Limine to
Exclude Respondent’s Proposed Expert With Incorporated
Memorandum of Law, and Request for Hearing [ECF No. 36],
Petitioner’s Motion in Limine to Exclude Inadmissible Portions
of Respondent’s Article 14 Declaration with Incorporated
Memorandum of Law, and Request for Hearing [ECF No. 39].

The

Court finds that a hearing is unnecessary.

I.

PROCEDURAL BACKGROUND
In brief,1 Petitioner, Enedina Alvarez (the “Petitioner” or

“Mother”), filed her Verified Petition for Return of the
Children to Mexico and Issuance of Show Cause Order [ECF No. 1]
(“Petition for Return”)2 on April 12, 2017.

1

An evidentiary

For a more detailed procedural background, refer to
Memorandum and Order Re: Comity [ECF No. 41].
2
Pursuant to The Convention on the Civil Aspects of

1

hearing was scheduled to be held on May 30, 2017, and the Court
referred the case to a Magistrate Judge for confidential
mediation3 proceedings.

Initial Scheduling Order, ECF No. 13.

The Mother filed an Amended Verified Petition for Return of the
Children to Mexico [ECF No. 11] on April 20, 2017, which added a
request that this Court recognize and accord comity to the
Mexico trial court’s decision and the Mexico appellate court’s
decision.4
On April 26, 2017, the Court issued an Agreed Scheduling
Order [ECF No. 16] based upon the parties’ Consent Scheduling
Order [ECF No. 15].

The Father filed his Answer [ECF No. 21] on

May 10, 2017, denying that the Mother had legal custody over the
children and denying that the children had been wrongfully
removed from Mexico.

Answer ¶¶ 35-39, ECF No. 21.

International Child Abduction, done at The Hague
on October 25, 1980; International Child Abduction Remedies Act,
22 U.S.C. 9001 et seq. (the “Hague Convention”).
3
Multiple mediation conferences were held, but the parties
were unable to finalize an agreed resolution at the time of
writing.
4
These decisions were issued in relation to the Father’s
Hague Convention Petition for Return filed in Mexico against the
Mother while the children were living with the Mother in Mexico.
The appellate decision affirmed a lower Mexico court order
finding that the Mother had not wrongfully retained the children
in Mexico, and that the Father had consented for the children to
live in Mexico with the Mother. The Court granted the
Petitioner’s request for comity. Memorandum and Order Re:
Comity, ECF No. 41.

2

The Agreed Scheduling Order [ECF No. 16] required the
parties to designate any experts on or before May 17, 2017.
Respondent requested an extension of time for certain pre-trial
filings, which was granted in part, extending the deadline to
designate an expert witness until the close of business on May
24, 2017. Memorandum and Order 2, ECF No. 27. Respondent’s
Expert Designation [ECF No. 30] was timely filed, but it did not
comply with Rule5 26(a)(2)(B).

The Court also granted

Respondent’s request to delay the disclosure of declaration of
foreign law until May 24, 2017, provided that an untranslated
version of the document was provided to Petitioner’s counsel by
May 22, 2017.

Id.

The Court also provided for relief to the Petitioner as a
result of the extension:
Petitioner may, at or before the trial
hearing, request appropriate relief in
response to the extensions herein, for
example in regard to any rebuttal expert or
continuance in part of the trial hearing for
further cross examination of Respondent’s
witnesses or presentation of additional
witnesses for the Petitioner.
Id.
By the current Motions in Limine, the Petitioner requests
this Court to exclude Respondent’s expert for failure to comply

5

All “Rule” references herein are to the Federal Rules of
Civil Procedure.

3

with the Rule 26 written report requirements and to redact6
portions of the Respondent’s Article 14 declaration of foreign
law.

II.

DISCUSSION
A.

Motion to Exclude Respondent’s Expert

The broad purpose of the discovery rules is to enable
parties to prepare for trial.

“[D]iscovery is founded upon the

policy that the search for truth should be aided.”

McDougall v.

Dunn, 468 F.2d 468, 473 (4th Cir. 1972)(quoting Tiedman v. Am.
Pigment Corp., 253 F.2d 803, 808 (4th Cir. 1958)).

Article 11

of the Hague Convention contemplates an outside limit of six
weeks from the date of filing for the determination of the
merits of a wrongful removal case.

Given such tight timelines,

the parties must cooperate with each other to complete discovery
expeditiously in advance of any evidentiary hearing that the
Court conducts.

Likewise, the Court and parties must operate

under a more flexible standard to permit both sides a fair
opportunity to develop their respective factual records.

6

Petitioner included a proposed redacted declaration, ECF
No. 39-2.

4

With regard to the instant motion to exclude expert
testimony, Rule 26 provides:
Unless otherwise stipulated or ordered by
the court, [the expert witness] disclosure
must be accompanied by a written report-prepared and signed by the witness--if the
witness is one retained or specially
employed to provide expert testimony in the
case . . . . The report must contain:
(i) a complete statement of all opinions the
witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the
witness in forming them;
(iii) any exhibits that will be used to
summarize or support them;
(iv) the witness’s qualifications, including
a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which,
during the previous 4 years, the witness
testified as an expert at trial or by
deposition; and
(vi) a statement of the compensation to be
paid for the study and testimony in the
case.
Rule 26(a)(2)(B).

Additionally, “[a] party may depose any

person who has been identified as an expert whose opinions may
be presented at trial. If Rule 26(a)(2)(B) requires a report
from the expert, the deposition may be conducted only after the
report is provided.”

Rule 26(4)(A).

Rule 37(c)(1) provides that “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or

5

(e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.”
In evaluating whether a party’s failure to comply with the
disclosure requirement is harmless and substantially justified,
courts consider the following factors:
(1) the surprise to the party against whom
the evidence would be offered;
(2) the ability of that party to cure the
surprise;
(3) the extent to which allowing the
evidence would disrupt the trial;
(4) the importance of the evidence; and
(5) the non-disclosing party’s explanation
for its failure to disclose the evidence.
Bresler v. Wilmington Trust Co., 855 F.3d 178, 190 (4th Cir.
2017).
The Petitioner contends that she has been unfairly
surprised by Respondent’s failure to provide an expert report,
the surprise cannot be cured, any attempt to cure would delay
the trial, and there is no excuse to justify the Respondent’s
failure.

The Court disagrees.

In the instant case, Petitioner was aware of Respondent’s
defense and his efforts to find an expert witness to testify on
his behalf.

Although the expert declaration submitted on May 24

generally described the opinions to be offered, Respondent has

6

now filed

an expert report to supplement this designation. See

Supplement to Respondent’s Expert Designation, ECF No. 43.
Respondent also notes that he has made the expert available for
Petitioner’s counsel to interview.7
This is a bench trial during which the Court will give both
parties ample opportunity to offer testimony that will aid the
Court’s decision-making process.

The Court is certainly capable

of determining the appropriate weight and probative value to
give the testimony and to evaluate it under the clear and
convincing standard necessary for the Respondent to establish
his defense.
Likewise, Petitioner is not materially prejudiced by the
court allowing the testimony of Respondent’s expert.

As already

addressed in the Court’s Order granting Respondent additional
time to file the expert information, Petitioner is free to offer
rebuttal testimony or further cross-examination.

Such

additional testimony, if required, can be scheduled promptly and
need not interfere with the Petitioner’s travel plans.

Further,

the Respondent shall, if he has not already, make the witness
timely available for Petitioner to depose.
Accordingly, the Court shall deny Petitioner’s motion to
exclude Respondent’s expert from testifying, and shall continue
7

In her Reply, Petitioner indicates she had no response to
her request to depose the witness.

7

to provide Petitioner with the opportunity to supplement as
necessary in a timely manner with regard to this expert witness.

B.

Motion to Redact Declaration of Law

Article 14 of the Hague Convention on the Civil Aspects of
International Child Abduction provides:
In ascertaining whether there has been a
wrongful removal or retention within the
meaning of Article 3, the judicial or
administrative authorities of the requested
State may take notice directly of the law
of, and of judicial or administrative
decisions, formally recognized or not in the
State of the habitual residence of the
child, without recourse to the specific
procedures for the proof of that law or for
the recognition of foreign decisions which
would otherwise be applicable.
The Hague Convention, Art. 14.

Rule 44.1 states that “the court

may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible
under the Federal Rules of Evidence.”
Petitioner requests that the Court redact the factual
averments found in Respondent’s declaration of foreign law. This
exercise is unnecessary.

The purpose of the parties’ foreign

law declarations is to aid the Court in determining the
applicable foreign law.

The Court will make its own findings of

fact based on the evidence presented and not based on any
declarant-witness’s assumptions of what the facts may be.

8

While

Petitioner is correct that the assumed “facts” stated by the
declarant are irrelevant, it is unnecessary for the Court to
redact the report because the Court remains the ultimate arbiter
of the facts.
Accordingly, the Court shall deny Petitioner’s motion to
redact Respondent’s Article 14 declaration.

III. CONCLUSION
For the foregoing reasons:
1.

Petitioner’s Motion in Limine to Exclude
Respondent’s Proposed Expert With Incorporated
Memorandum of Law, and Request for Hearing [ECF
No. 36] is DENIED.
a.
b.

Respondent shall promptly make his Proposed
Expert available for deposition by
Petitioner.

c.

2.

Respondent’s Proposed Expert may testify at
trial on Monday, June 5, 2017.

Petitioner shall be granted the ability to
present rebuttal testimony to the Court in a
timely manner prior to the closing of trial
evidence.

Petitioner’s Motion in Limine to Exclude
Inadmissible Portions of Respondent’s Article 14
Declaration with Incorporated Memorandum of Law,
and Request for Hearing [ECF No. 39] is DENIED.

SO ORDERED, on Friday, June 2, 2017.
/s/__________
Paula Xinis
United States District Judge

9