Ramos Hernandez v. Avila Montes et al

Filing 16

TEMPORARY RESTRAINING ORDER - Nubia Avila Montes a/k/a Nubia Montes Avila and Fredy Leonel Barrios- or any other acting on their behalf- are PROHIBITED from removing the Child, N.R.A., from the Eastern District of North Carolina pending the prelimina ry injunction hearing. A preliminary injunction hearing to determine whether this TRO will be converted to a preliminary injunction under Ru1e 65 is schedu1ed for 2:00 p.m. on Monday, January 22, 2018, in courtroom one of the Terry Sanford Federal Bu ilding, 310 New Bern Avenue, Raleigh, North Carolina, before the Honorable James C. Dever III, Chief United States District Judge for the Eastern District of North Carolina. The United States Marshal shall serve Nubia Avila Montes a/k/a Nubia Montes Avila and Fredy Leonel Barrios with process by personally delivering a copy of the Summons, Verified Expedited Petition, and this TRO to them. Father's counsel SHALL provide the United States Marshal with a hard-copy of these documents to complete service of process. Counsel should read the order in its entirety for critical information. Signed by Chief Judge James C. Dever III on 1/12/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:18-CV-5-D
)
)
Petitioner,
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v.
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NUBIA AVILA MONTES, and
)
FREDY LEONEL BARRIOS,
)
)
Respondents. )

LORENZO RAMOS HERNANDEZ,

ORDER

On January1 0, 2018, petitioner, Lorenzo Ramos Hernandez ("Father" or "petitioner"), filed
an ex parte expedited motion for a temporary restraining order ("TRO") under Article 7(b) of the
Hague Convention on the Civil Aspects oflnternational Child Abduction (the "Hague Convention")
and the Jnternational Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001-9011. See
[D.E. 6]. Father requests that the court:
1. Issue an order prohibiting Nubia Avila Montes ("Mother") and Fredy
Leonel Barrios ("Barrios") or any others acting on their behalf or at their direction
from removing his son, N.R.A. (the "Child"), from this jurisdiction pending
resolution of this action;
2. Issue an order taking into safekeeping all of the Child's travel documents,
including his Mexican and American passports; and
3. Issue an expedited Ru1e to Show Cause ordering the appearance of
Mother, Barrios, and the Child on the first available date on the court's calendar so
that the court may combine the preliminary injunction hearing and the hearing on the
merits, holding any final hearing on the merits of the Verified Expedited Petition as
soon as possible, as required by the Convention.

As explained below, the court grants Father's motion and schedules the preliminary
injunction hearing for Monday, January 22, 2018, at 2:00 p.m., in courtroom one of the Terry
Sanford Federal Building, 310 New Bern Avenue, Raleigh, North Carolina.

I.
The Hague Convention protects "children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure their prompt return to the State
of their habitual residence." Maxwell v. Maxwell 588 F.3d 245, 250 (4th Cir. 2009). The Hague
Convention seeks to preserve the status quo by returning children to their home countries for further
proceedings. See Miller v. Miller. 240 F .3d 392, 398 (4th Cir. 2001 ). Thus, the underlying custody
case is not at issue under the Hague Convention. Rather, the treaty requires a child to be returned
home for any custody proceedings. See id. at 398.
To accomplish the goal of maintaining the status quo, the court may take steps "to prevent
future harm to the child or prejudice to interested parties by taking or causing to be taken
provisional measures."

Hague Convention, art. 7(b); see 22 U.S.C. § 9004(a) (allowing

preventative measures ''to protect the well-being of the child involved or to prevent the child's
further removal or concealment before the final disposition of the petition."). Article 7(b) of the
Hague Convention and 22 U.S. C. § 9004 permit courts to take provisional measures to ensure that
abducted children are not removed from their jurisdiction during the litigation. See, ~' Salguero
v. Arguem, No. 5:17-CV-125-FL, 2017 WL 1067758, at *2 (E.D.N.C. Mar. 21, 2017)
(unpublished); Smith v. Smith, No. 116-CV-264-MOC-DLH, 2016 WL 4154938, at *3 (W.D.N.C.
Aug. 4, 2016) (unpublished); Velasquez v. Velasquez. No. 1:14CV1688 (JCC/TRJ), 2014 WL
7272934, at *1 (E.D. Va. Dec. 15, 2014) (unpublished); Alcala v. Hernandez. No. 4:14-CV-4176RBH, 2014 WL 5506739, at *1 (D.S.C. Oct. 30, 2014) (unpublished).
Based on Father's allegations and the record, relief without notice to Mother or Barrios is
necessary to avoid immediate and irreparable injury, loss, and damage. As required by Rule
65(b)(1 )(B), Father's counsel has properly certified to the court the reasons why notice should not

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be required. See [D.E. 6-2] 2-3. Thus, the elements ofRule 65(b)(1)(B) are met. See Fed. R. Civ.
P. 65(b)(l)(B).
"A plaintiff seeking preliminary injunctive relief must establish that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tip in his favor, and that an injunction is in the public interest." Winter v.
Natural Res. Def. Council. Inc .. 555 U.S. 7, 20 (2008); see The Real Truth About Obama, Inc. v.
FEC, 575 F.3d 342,346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reissued
inrelevantpm:t, 607 F.3d 355,356 (4th Cir. 2010) (per curiam). Afterexaminingthesefactors, the
court finds that the requested TRO is authorized and necessary in this case.
First, the court finds that allowing the Mother to flee with the Child would result in
irreparable harm. See Alcala. 2014 WL 5506739, at *6. Second, the court finds that any threatened
harm to Mother and Barrios is miniinal as compared to the probability of irreparable harm to Father
and the Child. As explained in Father's memorandum in support of the motion, Father is not
seeking a permanent custody order from this court. See [D.E. 7] 10. Moreover, because the court
cannot make a custody determination, the court finds that Mother cannot lose any custody rights
from the TRO. See Abbot v. Abbot 560 U.S. 1, 20 (2010) ("Ordering a return remedy does not
alter the existing allocation of custody rights, but does allow the courts of the home country to
decide what is in the child's best interests. It is the Convention's premise that courts in contracting
states will make this determination in a responsible manner." (citations omitted)).
Third, the court finds that Father has demonstrated that he is likely to succeed on the merits.
Father's evidence shows that (1) the Child's habitual residence was Mexico immediately before the
wrongful retention; (2) Father has "rights of custody" under Mexican law; and (3) Father was
exercising his rights of custody and would have continued doing so but for Mother's wrongful

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retention of the Child in the United States. See [D.E. 7] 11-15. Fourth, the public interest supports
issuing the TRO. See Salguero v. Argueta No. 5:17-CV-125-FL, 2017 WL 1067758, at *2
(E.D.N.C. Mar. 21, 2017) (unpublished) ("Finally, a TRO serves the public interest. Since
international abduction [and] wrongful retention of [a] child[] is harmful to [his or her] well-being,'
a TRO in this case will serve the public interest by protecting the child's well-being." (quotation
omitted) (alterations in original)); Alcala v. Hernandez No. 4:14-CV-4176-RBH, 2014 WL
5506739, at *7 (D.S.C. Oct. 30, 2014) (unpublished).
The court declines to require bond. A bond is not mandatory and can be waived. See
Hoechst Diafoil Co. v. Nan Ya Plastics Corp .. 174 F.3d 411, 421 n.3 (4th Cir. 1999); Pashby v.
Delia 709 F.3d 307, 332 (4th Cir. 2013). Father is merely seeking a temporary order prohibiting
Mother and Barrios from removing the Child from the jurisdiction, requiring Mother and Barrios
to relinquish the Child's travel documents to the custody of the court, and requiring an expedited
hearing. Father is not seeking a permanent custody order or to permanently limit Mother or
Barrios's ability to travel. Thus, the court declines to require Father to post a bond.
II.
In sum, the court GRANTS Father's Ex Parte Expedited Motion for Temporary Restraining
Order [D.E. 6] and ORDERS:
(a) Nubia Avila Montes a/k/a Nubia Montes Avila and Fredy Leonel Barrios-or any other
acting on their behalf-are PROHIBITED from removing the Child, N.R.A., from the Eastern
District ofNorth Carolina pending the preliminary injunction hearing;

(b) A preliminary injunction hearing to determine whether this TRO will be converted to
a preliminary injunction under Ru1e 65 is schedu1ed for 2:00p.m. on Monday, January 22,2018,
in courtroom one of the Terry Sanford Federal Building, 310 New Bern Avenue, Raleigh, North

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Carolina, before the Honorable James C. Dever Ill, Chief United States District Judge for the
Eastern District ofNorth Carolina.
(c) NubiaAvilaMontes a/k/aNubiaMontes Avila and Fredy Leonel Barrios SHALL appear
with the Child, N.R.A. at this hearing to show cause why they should not be prohibited from
removing the Child from the jurisdiction until this litigation is concluded.
(d) The United States Marshal shall serve Nubia Avila Montes a/k/a Nubia Montes Avila
and Fredy Leonel Barrios with process by personally delivering a copy of the Summons, Verified
Expedited Petition, and this TRO to them. Father's counsel SHALL provide the United States
Marshal with a hard-copy of these documents to complete service of process.
(e) Nubia Avila Montes a/k/a Nubia Montes Avila and Fredy Leonel Barrios shall
relinquish the Child's travel documents, including his Mexican and American passports, to the
United States Marshal upon service ofprocess (or as soon as practical thereafter ifthose documents
are secured in a lock box or location other than her residence). Thereafter, the United States
Marshal shall deliver the travel documents to the Clerk of Court for safekeeping until further order
of this court.
SO ORDERED. This 1.L_ day of January 2018.

J
SC.DEVERill
Chief United States District Judge

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