Custodio v. Samillan

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Respondents Motion for Leave to File Amended Answer and To File Brief Opposing Petitioners Complaint for Return of Child [ 38 ] is GRANTED in part. Respondent shall file her proposed amended answer no later than Monday, November 23, 2015 and her post- trial brief no later than Tuesday, November 24, 2015. Any reply shall be filed no later than Tuesday, December 1, 2015. Signed by District Judge John A. Ross on 11/19/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EDUARDO PAUL CUSTODIO,
Petitioner,
v.
CECILIA MARIANELA TORRES SAMILLAN,
Respondent.

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Case No. 4:15-CV-01162 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Respondent’s Motion for Leave to File Amended
Answer and To File Brief Opposing Petitioner’s Complaint for Return of Child. (Doc. No. 38)
Petitioner opposes the motion. (Doc. No. 41) For the following reasons, Respondent’s motion
will be granted in part.
Background
Petitioner filed his Complaint for Return of Child on July 28, 2015 (Doc. No. 1) and a
First Amended Complaint on August 7, 2015. (Doc. No. 5) On August 10, 2015, the Court issued
an Order to Show Cause regarding the First Amended Complaint and set the matter for hearing
on August 25, 2015. (Doc. No. 7) Respondent filed a pro se response letter on August 25, 2015
which the Court has construed as an Answer. (Doc. No. 9) Both parties appeared for the show
cause hearing, Petitioner, through counsel and Respondent, pro se. At that time, a hearing on
Petitioner’s complaint was scheduled for September 10, 2015.
On September 10, 2015, Respondent again appeared pro se and was assisted by an
interpreter. The Court heard arguments from both sides and admitted certain of Petitioner’s

exhibits into evidence. After Petitioner rested his case, Respondent orally requested a
continuance for a number of reasons. Over Petitioner’s objection, the Court granted Respondent
a continuance to allow her additional time to seek counsel and set the matter for hearing on
September 24, 2015.
On September 24, 2015, Respondent again appeared pro se, having been unable to retain
counsel. Additional evidence was presented and the Court interviewed the children on the record
in chambers. The matter was taken under submission and the parties granted until October 2,
2015 to file their written submissions in support of and in opposition to Petitioner’s Amended
Complaint and scheduled a hearing on October 8, 2015. (Doc. No. 17) Both parties filed their
submissions on October 2, 2015. (Doc. Nos. 20, 21, 22)
On October 8, 2015, the Court allowed Petitioner’s counsel to examine the children in
open court. At the end of this proceeding, and with the agreement of the parties, the Court
continued the case for one week to give the parties an opportunity to discuss a resolution and
ordered a status report, due October 16, 2015. (Doc. No. 26) After being advised that the parties
engaged in settlement discussions and that progress was made but no settlement reached, the
Court appointed limited scope counsel for Respondent to facilitate further discussions and
ordered the parties to update their status report by November 3, 2015. (Doc. No. 29) On
November 3, 2015, the parties advised the Court that a settlement had not been reached. (Doc.
Nos. 31, 33) Respondent requested additional time to continue to explore settlement and the
Court granted the parties one final extension of seven days to continue their discussions. (Doc.
No. 34) Given that the parties are now at an impasse, counsel for Respondent has agreed to
represent Respondent pro bono and filed a general appearance on her behalf. (Doc. No. 36)

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Discussion
Respondent now seeks leave to amend her answer pursuant to Federal Rule of Civil
Procedure 15(a) and file a memorandum in opposition to Petitioner’s amended complaint for
return of child. Rule 15(a) applies to amendments before trial. Because Respondent’s request
comes after the parties have presented evidence and submitted arguments to the Court, Rule
15(b), which applies to amendments during and after trial, governs. Under Rule 15(b), leave to
file an amendment may be granted under two conditions: 1) after a party has made an objection
to evidence that is not within the issues raised in the pleading; or 2) after an issue has been tried
by express or implied consent. Fed. R. Civ. P. 15(b)(1), (2). The first condition is inapplicable
because neither party made an objection to evidence not within the issues raised in the pleadings.
The second condition may be applicable; however, the Court cannot make this determination
without first reviewing Respondent’s proposed amendment. Thus, the Court will defer ruling on
Respondent’s motion for leave to file an amended answer and direct Respondent to file her
proposed amendment. The Court will permit Respondent to file a post-trial memorandum, not to
re-litigate her entire case, as Petitioner argues, but rather to clarify her position, which will
further inform the Court in its determination of the issues. Petitioner will be given an opportunity
to respond.
In his opposition to Respondent’s motion, Petitioner complains of “numerous delays and
continuances.” The Court is acutely aware that the purpose of the Hague Convention is to secure
the “prompt return” of children to their habitual residence. See 42 U.S.C.A. 11601, et seq.
Accordingly, the Court has given this case appropriate priority. As set out above, the Court has
held a number of hearings and finds there has been no undue delay.
Accordingly,

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IT IS HEREBY ORDERED that Respondent’s Motion for Leave to File Amended
Answer and To File Brief Opposing Petitioner’s Complaint for Return of Child [38] is
GRANTED in part. Respondent shall file her proposed amended answer no later than Monday,
November 23, 2015 and her post-trial brief no later than Tuesday, November 24, 2015. Any
reply shall be filed no later than Tuesday, December 1, 2015.
Dated this 19th day of November, 2015.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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