Zujovic v. Popovic

Filing 35

ORDER: For the reasons stated in the attached Order, the Court directs the Clerk of Court, pursuant to 28 U.S.C. § 1406, to transfer this case to the Eastern District of California. So Ordered by Magistrate Judge Sanket J. Bulsara on 2/6/2024. (AL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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VLADIMIR ZUJOVIC,
Plaintiff,
-against-

ORDER
23-CV-05559-DG-SJB

CVETA POPOVIC and VISNJA POPOVIC,
Defendants.
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BULSARA, United States Magistrate Judge:
The Clerk of Court is directed to transfer this case to the Eastern District of
California. A Hague Convention matter like the present one may only be filed in the
federal district encompassing the location of the child, H.Z. See Skolnick v. Wainer, No.
CV 2013-4694, 2013 WL 5329112, at *1 (E.D.N.Y. Sept. 20, 2013) (“ICARA provides that
a ‘person seeking to initiate judicial proceedings under the Convention for the return of
a child . . . may . . . commenc[e] a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action and which is authorized to exercise its
jurisdiction in the place where the child is located at the time the petition is filed.’”
(alterations in original) (quoting 42 U.S.C. § 11603(b))). This case began on July 21,
2023. (See Dkt. No. 1). At the status conference on September 21, 2023, counsel for the
Petitioner indicated that the child’s whereabouts were unknown. (See Tr. dated Sept.
21, 2023 (“Sept. 21 Tr.”), Dkt. No. 34 at 3:7–3:25, 5:13–5:20). At a subsequent
conference on November 13, 2023, counsel for Respondent Visnja Popovic indicated
that H.Z. is living in California pursuant to a Kings County Family Court order issued in
August 2023, giving temporary custody to H.Z.’s maternal aunt. This custody order
followed a proceeding initiated by the Administration of Child Services.

Petitioner asserted in the Petition and the Amended Petition that H.Z. was living
in Brooklyn, and therefore in the Eastern District of New York, when this case was first
filed. (Pet. dated July 21, 2023 (“Pet.”), Dkt. No. 1 ¶¶ 17, 19; Am. Pet. dated Oct. 12,
2023 (“Am. Pet.”), Dkt. No. 13 ¶ 75). While venue may have been appropriate when the
Petition was originally filed, when the Amended Petition was filed, H.Z. was not living in
the District. (Tr. dated Nov. 13, 2023 (“Nov. 13 Tr.”), Dkt. No. 33 at 5:1–5:9). Petitioner
has not cited any authority (and the Court is not aware of any) to support that a child’s
location is irrelevant upon the filing of an Amended Petition, and the location at the
time of the original Petition would control. Even if that were the case, the changed
circumstances warrant transfer of this case, pursuant to 28 U.S.C. § 1404. The interests
of justice suggest transfer is the most appropriate route to a resolution: the child and her
temporary custodian live in California; Petitioner is a foreign citizen who has no
particular ties to the United States or this jurisdiction; and no witnesses or evidence
exist in this jurisdiction. E.g., Salguero v. Argueta, 256 F. Supp. 3d 630, 633 (E.D.N.C.
2017) (“On or around January 24, 2017, petitioner learned that respondent and the child
were located in Raleigh, North Carolina. Petitioner then moved to transfer the case to
this court, pursuant to 28 U.S.C. § 1404(a). The court granted petitioner’s motion and
transferred the case to this court on March 14, 2017.”); Gayle-Sawyers v. Wellington,
No. 22-CV-2309, 2022 WL 18674917, at *1–*2 (N.D. Ga. Aug. 22, 2022) (transferring
case because, although child was initially located in Georgia at time of filing of initial
petition, child subsequently moved to New York).
It is not clear at all that this venue is more convenient for Petitioner than any
other venue, whereas for the child and guardian, who reside in California (as opposed to
outside the United States), and who may have to testify and be examined by experts,

California is a more convenient venue. Petitioner asserts that he is of relatively modest
means compared to Respondent, that he cannot afford counsel, and that the
Respondent remains in Brooklyn for family court proceedings taking place in Kings
County Family Court. (See Pet’r’s Br. Concerning Transfer of Venue dated Nov. 28,
2023 (“Pet’r’s Br.”), Dkt. No. 28 at 7–8). None of these assertions bear much weight
(and are largely unsupported). For one thing, the location of family court proceedings is
irrelevant to the location of Hague proceedings; it is often the case—indeed, almost
certainly the case—that Hague Convention matters are litigated in places away from
underlying custody disputes. Furthermore, when a Hague Convention case is properly
filed and served, it results in an automatic stay of any state court custody proceedings.
Teller v. Helbrans, No. 19-CV-3172, 2019 WL 5842649, at *11 (E.D.N.Y. Nov. 7, 2019)
(citing Yang v. Tsui, 416 F.3d 199, 203 (3d Cir. 2005)). To the extent Petitioner is
arguing that it would be easier for him to attend the Hague Convention case pending in
New York federal court, which is in the same state where the family court custody
proceeding is being litigated, Petitioner has never appeared in New York for any
proceeding. (See Sept. 21 Tr. at 4:2–4:3, 12:6–12:8; Pet’r’s Br. at 7). As for the
Respondents, one of them is H.Z.’s maternal aunt and lives in the Eastern District of
California. (See Nov. 13 Tr. at 8:1–8:6).
There is a separate problem that Petitioner should be prepared to address in the
transferee court: this Petition was first filed on July 21, 2023, which is more than 1 year
after the child was allegedly removed illegally in September 2021. (Pet. ¶ 1; Am. Pet.
¶ 59). The one-year bar under ICARA appears to bar the Petition and Amended
Petition. Lozano v. Montoya Alvarez, 572 U.S. 1, 5 (2014) (stating that, in general,

“failure to file a petition for return within one year renders the return remedy
unavailable”).
In any event, the Court transfers this case to the Eastern District of California,
pursuant to 28 U.S.C. § 1404(a). See Alexander v. Comm’r of Soc. Sec., No. 23-CV6964, 2023 WL 6125634, at *3 (S.D.N.Y. Sept. 19, 2023) (“[T]ransfer orders are nondispositive and consequently within the authority of a magistrate judge acting pursuant
to 28 U.S.C. § 636(b)(1)(A).”) (collecting cases).

SO ORDERED.
/s/ Sanket J. Bulsara February 6, 2024
SANKET J. BULSARA
United States Magistrate Judge
Brooklyn, New York