Gamboa v. Murphy
Filing
19
MEMORANDUM OPINION and ORDER GRANTING 12 motion for appearance at evidentiary hearing by contemporaneous transmission. Signed by Judge Deborah K. Chasanow on 12/5/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JHENNY ELIZABTEH GAMBOA
:
v.
:
Civil Action No. DKC 16-3716
:
TODD PATRICK MURPHY
:
MEMORANDUM OPINION AND ORDER
On November 15, 2016, Petitioner Jhenny Elizabeth Gamboa
(“Petitioner”) filed a verified petition for return of child to
Canada.
(ECF No. 1).
The evidentiary hearing in this matter is
scheduled for December 14, 2016, and Petitioner has filed a
motion to appear at the evidentiary hearing by contemporaneous
transmission.
(ECF No. 12).
Respondent Todd Patrick Murphy
(“Respondent”) filed a response in opposition to the motion for
appearance
by
contemporaneous
transmission
Petitioner replied (ECF No. 18).
(ECF
No.
14),
and
For the following reasons, the
motion for appearance by contemporaneous transmission will be
granted.
As set forth in the petition, Petitioner is a citizen of
Colombia currently residing in Ontario, Canada.
8).
to
(ECF No. 1 ¶
Petitioner brought this action under the Hague Convention
secure
the
return
of
her
minor
child
J.A.,
citizen, to Canada, his alleged habitual residence.
37).
a
Canadian
(Id. ¶¶ 32-
Petitioner alleges that Respondent brought J.A. to the
United States on April 23, 2016, with the agreement that he
would
return
J.A.
to
Canada
on
June
30,
2016,
but
that
Respondent has wrongfully retained J.A. in the United States
since that time.
(Id. ¶¶ 25-31, 38).
In the present motion, Petitioner argues that she is not
legally or financially able to travel to the United States to
present live testimony at the evidentiary hearing.
Petitioner
avers that: (1) having been required to turn in her Colombian
passport to the Canadian government when she applied for refugee
status, she does not have valid travel documents that would
allow her to enter the United States; (2) she is ineligible for
the
visa
waiver
program;
(3)
she
could
not
apply
for
humanitarian parole to enter the United States in time for the
expedited
hearing,
and
that
even
if
her
application
were
granted, she would not be permitted to re-enter Canada following
these proceedings; (4) her pending immigration application in
Canada does not permit her to travel; and (5) she is financially
unable to travel to the United States.
Respondent
contends
that
if
(ECF No. 12 ¶¶ 9-14).
Petitioner
had
applied
for
humanitarian parole at some point in the past six years, or
after filing for custody in Ontario on September 26, 2016, there
would
have
been
sufficient
time
for
her
application
to
be
granted in time for her to appear at the evidentiary hearing,
and
that
he
will
be
severely
2
prejudiced
if
Petitioner
is
permitted to appear by videoconference at the hearing.
(ECF No.
14 ¶¶ 12-15, 26-27).
Federal Rule of Civil Procedure 43 governs the taking of
testimony
at
trial.
That
rule
expressly
provides
for
the
possibility of videoconference testimony, stating that “[f]or
good
cause
in
compelling
circumstances
and
with
appropriate
safeguards, the court may permit testimony in open court by
contemporaneous
transmission
from
a
different
location.”
Fed.R.Civ.P. 43(a).
Moreover, the Hague Convention directs that
wrongful
cases
retention
will
Hague Convention, art. 11.
be
determined
expeditiously.
“Because of this directive, Courts
have adopted flexible procedural approaches to ensure that cases
are handled expeditiously, including allowing remote testimony.”
Alcala v. Hernandez, No. 4:14-CV-04176-RBH, 2015 WL 1893291, at
*1 (D.S.C. Apr. 27, 2015).
Courts have permitted remote testimony in Hague Convention
cases where the witnesses were unable to obtain visas to enter
the United States.
See, e.g., Mendoza v. Pascual, No. CV 615-
40, 2015 U.S.Dist.LEXIS 58806, at *4-5 (S.D.Ga. May 5, 2015)
(holding
that
petitioner’s
“diligent
efforts
and
proven
inability to obtain a visa or other official permission to enter
the United States satisfies the ‘good cause’ standard”); Alcala,
2015 WL 1893291, at *2 (holding that inability to obtain a visa
and financial inability to travel satisfied the Rule 43 standard
3
and
allowing
remote
testimony);
Haimdas
v.
Haimdas,
720
F.Supp.2d 183, 187 (E.D.N.Y. 2010) (“As authorized by Rule 43(a)
. . . , petitioner, who had been unable to obtain a visa to
travel to this country, testified via a live video link from
London,
England.”),
aff’d
401
F.App’x
567
(2d
Cir.
2010);
Matovski v. Matovski, No. 06-CIV-4259, 2007 WL 1575253, at *3
(S.D.N.Y. May 31, 2007) (“In the limited context of an ICARA
case and on these facts, I consider the father’s inability to
obtain a visa, his limited financial resources and his physical
distance . . . to satisfy the standard of ‘for good cause shown
in compelling circumstances[.]’”); see also El-Hadad v. United
Arab Emirates, 496 F.3d 658, 668-69 (D.C. Cir. 2007) (affirming
trial court’s permission for remote testimony due to showing
that the party had been denied a visa in breach of contract
case).
Moreover,
provide
good
testimony.”
“[t]he
cause
cost
for
of
international
contemporaneous
travel
can
transmission
of
Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D.Md.
2010) (citing Dagen v. CFC Grp. Holdings, No. 00 Civ. 5682, 2003
WL 22533425, at *2 (S.D.N.Y. Nov. 7, 2003)).
Petitioner’s
testimony
is
necessary
to
prove
her
prima
facie case at the evidentiary hearing, but Petitioner is legally
and
financially
unable
to
travel
to
the
United
States.
Respondent’s argument that Petitioner should have applied for
humanitarian parole to permit her to travel for this hearing is
4
unpersuasive.
The parties agree that any such application would
generally be adjudicated within three months.
¶ 15; 18 ¶ 13).
(ECF Nos. 14
Even if Petitioner’s application were granted,
then, it would not be granted in time to allow the expeditious
hearing
of
this
matter.
Moreover,
even
if
Petitioner
were
granted parole to enter the United States, she would not be able
to re-enter Canada following these proceedings given her current
immigration status.
Therefore, given that her parental rights
are at stake, Petitioner’s inability to travel to the United
States satisfies the “good cause in compelling circumstances”
required
for
the
court
to
permit
her
testimony
by
videoconference under Fed.R.Civ.P. 43.
Petitioner has also shown that appropriate safeguards will
be in place for her remote testimony.
Such
safeguards
should
ensure
See Fed.R.Civ.P. 43(a).
accurate
identification
of
the
witness, protect against influence by persons present with the
witness,
and
assure
advisory
committee’s
accurate
note
to
transmission.
1996
Fed.R.Civ.P.
43
Examples
of
amendment.
procedures used to satisfy the rule include the swearing in of
the witness remotely, ensuring that the witness is alone and has
been provided with documentary evidence in advance, requiring
the movant to pay the associated costs, and requiring that the
means
of
providing
remote
testimony
Alcala, 2015 WL 1893291, at *2-3.
5
be
tested
in
advance.
Petitioner has proposed that:
her counsel will work with the court’s technology department to
facilitate the remote testimony and will troubleshoot technical
problems in advance of the hearing; Petitioner will testify from
her local counsel’s office in a closed room with an interpreter;
a duly qualified person will be present to provide any necessary
oath in Canada, in addition to the courtroom clerk who will read
the
oath
evidence
to
the
will
be
interpreter
marked
and
prior
Petitioner;
to
the
all
hearing
documentary
and
produced
according to the court’s scheduling order; Petitioner will pay
all costs associated with the remote testimony; and Petitioner
will provide a copy of her identification to the court to verify
her identify prior to her testimony.
¶ 8).
These
proposals
are
(ECF Nos. 12 ¶ 21; 18
appropriate
and
sufficient
under
Fed.R.Civ.P. 43.
Accordingly, it is this 5th day of December, 2016, by the
United
States
District
Court
for
the
District
of
Maryland,
ORDERED that:
1.
The motion for appearance at evidentiary hearing by
contemporaneous
Elizabeth
Gamboa
transmission
(ECF
No.
filed
12)
BE,
by
and
Petitioner
the
same
Jhenny
hereby
IS,
GRANTED;
2.
appear
Petitioner
and
to
Jhenny
give
Elizabeth
testimony
by
Gamboa
is
permitted
contemporaneous
transmission at the evidentiary hearing in this case;
6
to
video
3.
counsel,
Petitioner
Jhenny
will
all
take
Elizabeth
necessary
Gamboa,
steps
to
through
ensure
her
proper
functioning of technological equipment used for contemporaneous
video transmission at the evidentiary hearing;
4.
Petitioner Jhenny Elizabeth Gamboa and Respondent Todd
Patrick Murphy, through counsel, will exchange all documentary
evidence
to
be
used
on
direct
and
cross
examination
of
Petitioner pursuant to the scheduling order (ECF No. 9);
5.
Petitioner
Jhenny
Elizabeth
Gamboa,
through
her
counsel, shall make arrangements to render her testimony alone
(other than with an interpreter), in a closed room;
6.
Petitioner
Jhenny
Elizabeth
Gamboa,
through
her
counsel, shall provide a copy of her identification, including
photograph and biographical data, to this court in advance of
her video testimony to prove her identity;
7.
associated
Petitioner shall be responsible for any and all costs
with
her
appearance
by
contemporaneous
video
transmission; and
8.
The
clerk
will
transmit
copies
of
this
Memorandum
Opinion and Order to counsel for the parties.
/s/
DEBORAH K. CHASANOW
United States District Judge
7
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