Alcala v. Hernandez
Filing
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ORDER granting 69 Motion to Appear Remotely. Signed by the Honorable R. Bryan Harwell on 4/27/2015. (hcic, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Fernando Contreras Alcalá,
Petitioner,
vs.
Claudia García Hernández,
Respondent.
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Civil Action No. 4:14-cv-04176-RBH-TER
ORDER ALLOWING PETITIONER AND WITNESS TO APPEAR REMOTELY
Petitioner Fernando Contreras Alcalá (“Petitioner”), with the consent of Respondent
Claudia García Hernández (“Respondent”), has requested that the Court allow him and his
father, Antonio Contreras Monterosas (“Mr. Monterosas”) to appear at trial telephonically or by
live video (Skype) pursuant to Federal Rules of Civil Procedure Rule 43(a). {ECF No. 69.}1
Based on the compelling circumstances of a Hague Convention trial, the Court finds that good
cause exists to allow Petitioner and Mr. Monterosas to appear and testify remotely and, therefore,
GRANTS Petitioner’s Motion to Appear Remotely.
FACTUAL BACKGROUND
On October 27, 2014, Petitioner filed his Verified Petition in the Federal District Court
for the District of South Carolina located in Florence, South Carolina. As explained in the
Verified Petition, Petitioner, a citizen of Mexico currently residing in Cosolapa, Oaxaca, Mexico,
brought the federal court action to secure the return of his two children, F.C.G., his nine-year old
son, and A.C.G., his two-year-old son (collectively the “Children”). Petitioner alleged that the
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Petitioner filed this Motion in furtherance of his Verified Petition filed pursuant to the
Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”),
and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001 to 9011.
Children were, without his consent or acquiescence, wrongfully removed from Mexico and
brought into the United States illegally by the children’s mother, Respondent.
Because of his inability to be present in Court to testify, Petitioner filed the present
Motion, requesting the Court permit him and Mr. Monterosas to testify, if necessary, by Skype or
telephone under Rule 43(a). As good cause for permitting him to do so, Petitioner argued that he
and Mr. Monterosas cannot travel because:
They likely would be unable to obtain a passport or visa to travel to the United
States, and;
Both are financially unable to travel to the United States.2
Furthermore, Petitioner argued that appropriate safeguards would be present to ensure
compliance with the mandates of Rule 43(a), such as his accurate identification by consular
officials, his seclusion during the testimony to prevent outside influence, and his willingness to
arrive early to test the technology involved so as to avoid interruptions during the trial.
DISCUSSION
The drafters of the Hague Convention directed that “[t]he judicial . . . authorities of
Contracting States shall act expeditiously in proceedings for the return of children.” Hague
Convention, art. 11.
Because of this directive, Courts have adopted flexible procedural
approaches to ensure that cases are handled expeditiously, including allowing remote testimony.
Specifically, Rule 43(a) permits a court to take remote testimony “[f]or good cause in compelling
circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). Courts within this
jurisdiction have applied Rule 43(a) to allow parties and witnesses to testify remotely. United
States v. Baker, 45 F.3d 837, 843-44 (4th Cir. 1995); Lopez v. NTI, LLC, 748 F. Supp. 2d 471,
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Petitioner was granted leave to proceed in the District Court without prepaying costs in part
because he makes roughly ten-thousand dollars per year, below the poverty guidelines.
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480 (D. Md. 2010); Edwards v. Logan, 38 F. Supp. 2d 463, 466 (W.D. Va. 1999). Although a
party’s live testimony is generally the rule, an exception can be made in certain circumstances—
the facts of this case present one such circumstance.
A.
Good Cause in Compelling Circumstances
Courts applying Rule 43(a) have established several situations justifying a court in
permitting remote testimony. One such situation is the inability to obtain a visa to enter the
country. See, e.g., El–Hadad v. United Arab Emirates, 496 F.3d 658, 668–69 (D.C. Cir. 2007)
(finding remote testimony from Egypt appropriate when the witness could not obtain a visa to
enter the United States); Haimdas v. Haimdas, 720 F. Supp. 2d 183, 187 (E.D.N.Y. 2010)
(testifying from London because of the inability to obtain a visa), aff’d, 401 F. App’x 567 (2d
Cir. 2010). Other justifications include the burden of international travel, e.g., Lopez v. NTI,
LLC, 748 F. Supp. 2d 471, 480 (D. Md. 2010),3 and even the impact that traveling will have on
one’s business, e.g., Dagen v. CFC Grp. Holdings Ltd, No. 00 CIV. 5682, 2003 WL 22533425,
at *1 (S.D.N.Y. Nov. 7, 2003).
Coupled with the general relaxation of procedural rules to promote conformity with the
overarching goals of the convention, i.e., the expedient return of the children, sufficient cause
exists for the Court to grant the Parties’ request. First, Petitioner and Mr. Monterosas are likely
unable to obtain a visa, both for reasons outside of their control and due to their indigent status.
As explained by Sarah Buffet, an experienced immigration attorney who submitted a declaration
in response to Petitioner’s first request to testify remotely, Petitioner would be required to travel
to the nearest consular office to apply for a visa. Once he arrived and paid the application fee,
there is no guarantee that he would have received a visa. In fact, Buffett opines that is likely that
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This is especially true where the witness cannot afford to travel—in Lopez, the witness made
the equivalent of only seven-thousand dollars per year. Lopez, 748 F. Supp. 2d at 480.
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Petitioner would be denied a visa outright because of his limited financial resources.
Furthermore, because Petitioner currently does not have a valid passport, he would not be able to
even apply for the visa.
Therefore, the Court finds Petitioner and Mr. Monterosas’ inability to obtain a visa and
their financial inability to travel satisfies the “good cause in compelling circumstances” to permit
their testimonies by Skype or telephone under Rule 43.
B.
Appropriate Safeguards
The Parties have also shown that appropriate safeguards are in place. Fed. Rules Civ. P.
43(a). The advisory committee’s notes to Rule 43(a) suggest that appropriate safeguards should
be in place to ensure:
(1) Accurate identification of the witness;
(2) Protection against influence from persons present with the witness; and
(3) Accurate transmission.
Fed. R. Civ. P. Rule 43(a) advisory committee’s note. Though scant case law is available on
these “appropriate safeguards,” several examples of procedures used to satisfy the rule include:
Requiring that a notary identify the witness and swear that witness in remotely.
Mission Capital Works, Inc. v. SC Rests., Inc., No. C-07-1807, 2008 WL 5100313, at
*1 n.12 (W.D. Wash. Dec. 3, 2008);
Ensuring that the witness is alone in the room and has been provided with the
documentary evidence in advance. Scott Timber, Inc. v. United States, 93 Fed. Cl.
498, 501 (Fed. Cl. 2010); and
Requiring the movant to pay all costs associated with the remote testimony and
requiring that it be tested with the Court’s IT personnel prior to the trial it which it is
used. Monserrate v. K.K. Mach. Co., No. 10-3732, 2013 WL 1412194, at *4
(E.D.N.Y. Apr. 8, 2013).
In this case, the Parties have suggested that the following procedural safeguards could
ensure that Petitioner and Mr. Monterosas’ remote testimony will satisfy Rule 43(a):
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Petitioner and Mr. Monterosas will report to the Foreign Relations Secretary’s local
office in Córdoba, Veracruz, Mexico, on May 11, 2015, and May 12, 2015, by 8:30
AM EST;
When at the appropriate local office, Petitioner and Mr. Monterosas will provide
sufficient documentation to a consular official who will verify their identities with the
Court prior to their testimony;
Petitioner and his counsel will troubleshoot any problems with the technology in
advance of the trial, and will work with the translator and Court/Consular staff to
ensure that he and Mr. Monterosas can be heard and understood;
Petitioner and Mr. Monterosas will testify separately, in a closed room, free of any
outside influence (both in-person and through other technological means) on their
testimonies;
All documentary evidence presented to Petitioner and Mr. Monterosas will be marked
prior to the trial and provided to them to facilitate their testimony; and
Petitioner (through counsel) will pay any costs associated with the remote testimony.
The Court finds these proposals sufficient to ensure Petitioner and Mr. Monterosas are
appropriately identified and will not be improperly influenced by outside sources during their
testimonies.
ORDER
Therefore, Petitioner and Mr. Monterosas may testify remotely at trial. It is hereby
ORDERED that Petitioner’s [Docket Entry #69] Motion to Appear Remotely is GRANTED as
follows:
(1)
On May 11, 2015, and May 12, 2015, at 9:30 AM EST, Petitioner and Mr.
Monterosas shall be permitted to testify by telephone from the Foreign Relations Secretary’s
Cordóba, Veracruz office, Av. 3, Calle 1, C.P. 94500, Cordóba, Veracruz (tel. 271-712-34-15),
or another location approved by order of this Court.
(2)
Petitioner and Mr. Monterosas are to arrive at the Foreign Relations Secretary’s
local office in Córdoba, Veracruz, Mexico, on May 11, 2015, and May 12, 2015, by 8:30 AM
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EST, so that they can confirm with Petitioner’s counsel, consular staff, and courtroom staff that
the technology is working properly such that all members present in the courtroom can hear and
understand their testimonies.
(3)
Petitioner and Mr. Monterosas shall provide sufficient identification to an
appropriate consular official who will identify himself, Petitioner, and Mr. Monterosas to the
Court prior to the trial.
(4)
Petitioner and Mr. Monterosas shall testify from a closed room within the Foreign
Relations Secretary’s Cordóba office, and no other person shall be permitted to communicate
with Petitioner or Mr. Monterosas during the proceedings, either in person or otherwise, unless
that communication is on the record in open court.
It is further ORDERED that Petitioner’s counsel or a member of the IT staff at his law
firm shall contact the Clerk’s Office to coordinate and confirm the logistics of the remote
testimony.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
April 27, 2015
Florence, South Carolina
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