Sharabati v. Sharabati

Filing 10

ORDER that the motion is GRANTED IN PART to the extent that it requests an order requiring an expedited response to the petition by Respondent and requiring Respondent to appear at the September 3, 2015 hearing with minor children, and DENIED in all other respects; A copy of this Order shall be served upon Respondent with a summons, the petition, the notice of hearing, and all other documents filed in this matter no later than August 24, 2015 9 Motion Under the Hague Convention for Service of Summons and Petition by United States Marshal's Service. Signed by District Judge Debra M. Brown on 8/6/15. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
PETITIONER
NOURA SHARABATI
V.

NO. 4:15-CV-00095-DMB-JMV

SAMEER SHARABATI a/k/a
SAMIR SHARABATEE

RESPONDENT

ORDER
Before the Court is “Petitioner’s Motion under The Hague Convention for Service of
Summons and Petition by United States Marshal’s Service, for Shortened Time for Response to
Petition and for Related Relief.” Doc. #9. For the reasons below, the motion will be granted in
part and denied in part.
I
On July 29, 2015, Petitioner Noura Sharabati filed a “Verified Petition for Return of
Children to Petitioner and for Immediate Issuance of Show Cause Order to Respondent,”
alleging that her husband, Respondent, unlawfully took their minor children from Israel and
moved to the Cleveland, Mississippi, area. Doc. #1. The same day, Petitioner filed an ex parte
motion for a temporary restraining order and an expedited hearing. Doc. #2. In her ex parte
motion, Petitioner sought, without notice to Respondent, a temporary restraining order
prohibiting Respondent, and anyone acting for him or with him, from removing their minor
children from the jurisdiction of this Court pending the entry of a final judgment. Id.
On August 4, 2015, the Court denied the motion for temporary restraining order after
finding that the petition failed to “me[e]t the strict requirements of Rule 65(b) [of the Federal

Rules of Civil Procedure].” Doc. #7 at 4. The next day, the Court noticed an evidentiary hearing
on the petition to proceed on September 3, 2015. Doc. #8. Petitioner now moves the Court for
entry of an Order providing several forms of relief, many of which are not appropriate given the
denial of the motion for temporary restraining order.
II
Petitioner’s instant motion requests that the Court enter an order that will: (a) direct the
United States Marshal’s Service to effectuate service upon Respondent of a summons, the
petition, the notice setting the hearing on the petition, and any other previously filed papers
deemed appropriate; (b) direct Respondent to file an expedited answer or other response to the
petition following service; (c) direct Respondent to appear at the hearing set by notice with the
minor children; (d) direct the Marshal’s Service to take possession of Respondent’s travel
documents; (e) direct the Marshal’s Service to take possession of the minor children’s travel
documents; and (f) provide any other direction to the Marshal’s Service the Court deems
appropriate. Doc. #9 at 1-2. The Court addresses each request in turn.
A
The Marshal’s Service
The Court begins by noting that had Petitioner met the requirements of Rule 65(b)
sufficient for a temporary restraining order, service by the Marshal’s Service would have been
appropriate. See Fed. R. Civ. P. 4.1 (requiring United States marshal or deputy marshal to serve
process other than summons under Rule 4 or subpoena under Rule 45); 4A CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1090 (3d ed. 2014) (“Types of process
falling under Rule 4.1 would include temporary restraining orders, injunctions, attachments,
arrests, and orders relating to judicial sales.”) (emphasis added). Petitioner’s motion was denied,
however; thus the Court looks to Rule 4 of the Federal Rules of Civil Procedure.
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Rule 4(c)(3) of the Federal Rules of Civil Procedure “provid[es] for service by a United
States marshal only in certain specifically designated circumstances.” 4A FEDERAL PRACTICE
AND

PROCEDURE § 1090. Specifically, at the request of a party, the Court “must order [service

by a United States marshal] if the plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.” Fed. R. Civ. P. 4(c)(3). The Court may
also order service by a United States marshal, id., when it finds such service is necessary, see 4A
FEDERAL PRACTICE AND PROCEDURE § 1090 (“Service of a summons and complaint by a marshal
is to be utilized at the request of a party only when that party … has obtained a court order
because for some reason a marshal is necessary to effect service.”). “However, before requesting
service by a marshal, the plaintiff should first attempt to make service by some other means
provided for in the rule; only when this proves unfeasible should the plaintiff request that the
district court direct a marshal to serve the summons and complaint.” Id. (citing 93 F.R.D. 255,
262, 128 Cong. Rec. H9848 to 9855, 96 F.R.D. 81, 127).
Petitioner has not offered any facts suggesting that ordinary service of process will be
ineffective nor has she offered any evidence that she has already attempted service, much less
proved that service is not feasible. Moreover, although Petitioner argues that service by a United
States marshal “will minimize the likelihood” of Respondent “fleeing the jurisdiction of the
Court with the children” prior to entry of final judgment, Doc. #9 at ¶ 4, she offers no evidence
to support this argument. Absent such a showing, the Court does not find that service by a
United States marshal is warranted.
Further, the Court declines to order the Marshal’s Service to take the passports and other
travel documents of Respondent and his children. Such is the type of extraordinary relief that
may be granted pursuant to a temporary restraining order or preliminary injunction but neither a

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temporary restraining order (given the Court’s denial of Petitioner’s ex parte motion) nor a
preliminary injunction has been issued in this case.
B
Expedited Response and Appearance at Hearing
Because the Court set the September 3, 2015, hearing on an expedited basis, the Court
will order that Respondent file an answer or other response to the petition within ten days of
being served.
Additionally, given the nature of the ultimate relief sought, the Court will order
Respondent to bring the minor children with him to the hearing.
III
For the reasons above, Petitioner’s motion [9] is GRANTED in Part and DENIED in
part. The motion is granted to the extent that it requests an order requiring an expedited
response to the petition by Respondent1 and requiring Respondent to appear at the September 3,
2015, hearing with the minor children but is denied in all other respects.
IV
Accordingly, it is ORDERED:
1.

Respondent shall file an answer or other response to the petition within ten (10)

days after service upon him of a summons and the petition.
2.

Respondent shall appear at the September 3, 2015, hearing with the minor

children.

1

Petitioner specifically requests that the Court enter an order directing Respondent to serve his “Answer or other
response … not less than ten (10) days after service of the Summons and Petition upon him.” Doc. #9 at 3
(emphasis added). The Court finds no reason to prohibit Respondent from filing his response earlier than ten days
after service if he so desires.

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3.

A copy of this Order shall be served upon Respondent with a summons, the

petition, the notice of hearing, and all other documents filed in this matter no later than August
24, 2015.
SO ORDERED, this 6th day of August, 2015.
/s/ Debra M. Brown
.
UNITED STATES DISTRICT JUDGE

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