Velasquez v. De Velasquez

Filing 52

MEMORANDUM OPINION in re 45 Motion to Alter or Amend Judgment. Signed by District Judge James C. Cacheris on 06/03/2015. (jlan)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
OSCAR EDGARDO VELASQUEZ,
Petitioner,
v.
MARIA TERESA FUNES DE
VELASQUEZ,
Respondent.

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M E M O R A N D U M

1:14cv1688 (JCC/MSN)

O P I N I O N

This matter is before the Court on Petitioner Oscar
Edgardo Velasquez’s Motion to Alter or Amend Judgment.
45.]

[Dkt.

After hearing argument of counsel, the Court denied the

motion in open court.

This opinion memorializes the findings of

the Court.
I. Background
Petitioner Oscar Velasquez (“Oscar”) initiated this
action on December 11, 2014 by filing a Verified Complaint and
Petition for Return of the Children pursuant to the Convention
on the Civil Aspects of International Child Abduction (the
“Hague Convention”) and the International Child Abduction
Remedies Act (“ICARA”), 42 U.S.C. §§ 11601, et seq.
[Dkt. 1].)

(Compl.

In short, Oscar alleged that he traveled with his

wife, Respondent Maria Teresa Funes De Velasquez (“Maria”), and

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their two minor daughters from El Salvador to the United States
in November of 2013.

After visiting family in Maryland and

Virginia for a couple of months, Oscar returned, by himself, to
El Salvador for a brief period of time.

Oscar returned to the

United States on February 20, 2014 and claimed that as of
February 27, 2014, Maria had wrongfully retained their two minor
daughters, ages five and seven, in the United States and refused
to return them to El Salvador.

(Id.)

On March 10 and 11, 2015, the Court held a bench
trial, received evidence, and heard argument of counsel.

On

April 8, 2015, pursuant to Rule 52 of the Federal Rules of Civil
Procedure, the Court issued findings of fact and conclusions of
law.

(Mem. Op. [Dkt. 42].)

Ultimately, the Court denied and

dismissed Oscar’s petition and directed the Clerk of Court to
enter judgment in Maria’s favor.

(Order [Dkt. 43]; Judgment

[Dkt. 44].)
On May 6, 2015, twenty-eight days after the Court
issued its final order, Oscar filed the motion now before the
Court, wherein he asks the Court to vacate its original judgment
and grant the Petition for Return of the Children.

(Pet’r’s

Mot. to Alter or Amend [Dkt. 45]; Pet’r’s Mem. in Supp. of Mot.
[Dkt. 46].)

Maria filed an opposition to Oscar’s motion

(Resp’t’s Opp’n [Dkt. 49]), to which Oscar filed a reply
(Pet’r’s Reply [Dkt. 50]).

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II. Legal Standard
“A district court has the discretion to grant a Rule
59(e) motion only in very narrow circumstances: (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest injustice.”
Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (citation and
internal quotation marks omitted).

These circumstances “rarely

arise and the motion to reconsider should be equally rare.”
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D.
99, 101 (E.D. Va. 1983).

Moreover, motions for reconsideration

may not “reargue the facts and law originally argued in the
parties’ briefs.”

Projects Mgmt. Co. v. DynCorp Int’l, LLC, 17

F. Supp. 3d 539, 541 (E.D. Va. 2014) (quoting United States v.
Smithfield Foods, Inc., 969 F. Supp. 975, 977 (E.D. Va. 1997))
(citing Pacific Ins. Co. v. Am. Nat’l Fire. Ins. Co., 148 F.3d
396, 403 (4th Cir. 1998) (“The Rule 59(e) motion may not be used
to relitigate old matters.”)).

Stated differently, it is

inappropriate for the court to “reevaluate the basis upon which
it made a prior ruling,” especially if it appears the motion
“merely seeks to reargue a previous claim.”

DynCorp Int’l, LLC,

17 F. Supp. 3d at 541 (quoting Smithfield Foods, 969 F. Supp. at
997).

Indeed, such a request necessarily requires an

“extraordinary remedy which should be used sparingly.”

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DynCorp

Int’l, LLC, 17 F. Supp. 3d at 541 (quoting Pacific Ins. Co., 148
F.3d at 403).
III. Analysis
In its prior ruling, after hearing and weighing the
evidence, and after evaluating the credibility of witness
testimony during the bench trial, the Court found: (1) Oscar
failed to meet his burden of proving by a preponderance of the
evidence that Maria’s retention of the daughters in the United
States was wrongful pursuant to 22 U.S.C. § 9003(e)(1)(A),
because the daughters were habitually resident in the United
States immediately prior to their retention and had acclimatized
to the United States (Mem. Op. at 23-34); and (2) alternatively,
even if the daughters’ habitual residence was El Salvador
immediately prior to their retention, there was a grave risk
that returning the daughters to El Salvador would expose them to
physical or psychological harm, or otherwise place them in an
intolerable situation.

(Id. at 34-37.)

denied and dismissed Oscar’s Petition.

Accordingly, the Court
(Order at 1.)

In his motion now before the Court, Oscar briefly
raises “new evidence” that was not before the Court at the time
of trial, namely that on April 7, 2015, one day before the Court
dismissed Oscar’s petition, Oscar and Maria were granted a
divorce under the laws of El Salvador, and Oscar was granted
provisional personal care and legal representation of the two

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minor daughters, while Maria was granted visitation rights.
(Pet’r’s Mem. at 1-2.)

Otherwise, Oscar re-argues issues

regarding his prima facie case of wrongful retention and Maria’s
affirmative defense of grave risk of harm.

(Id. at 2-18.)

On

both fronts, the Court denied the motion.
A. Newly Discovered Evidence
Rule 59(e) relief may be appropriate “to account for
new evidence not available at trial.”
F.2d 1076, 1081 (4th Cir. 1993).

Hutchinson v. Staton, 994

The party setting forth new

evidence must produce a “legitimate justification for not
presenting” the evidence during trial.

RGI, Inc. v. Unified

Indus., Inc., 963 F.2d 658, 662 (4th Cir. 1992).

Notably,

however, the newly discovered evidence must have existed at the
time of trial.

See Alicea v. Machete Music, 744 F.3d 773, 781

(1st Cir. 2014) (quoting 11 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2808) (“Newly
discovered evidence must be of facts existing at the time of
trial.

The moving party must have been excusably ignorant of

the facts despite using due diligence to learn about them.”)).
Here, Oscar contends that the Court should reconsider
its prior holding because on April 7, 2015, one day before
judgment was entered, the parties were granted a divorce under
the laws of El Salvador, and Oscar was granted provisional
personal care and legal representation of the minor daughters,

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while Maria was granted visitation.

(Pet’r’s Mem. at 1-2.)

However, in short, this does not qualify as “new evidence” under
Rule 59(e), because it is undisputed that this evidence did not
exist at the time of trial, when all evidence was presented.
See Machete Music, 744 F.3d at 781; see also Pet’r’s Reply at 1
(“The holding by the court in El Salvador was not available at
the time of the trial. . . .”).

Instead, it remains true that

as of March 10 and 11, 2015--the dates the Court held the bench
trial in this matter--the parties had only initiated divorce
proceedings both in El Salvador and the United States without
any final disposition.

(See Mem. Op. at 22-23 (“Maria recently

filed for divorce in Prince William County, and Oscar recently
filed for divorce in El Salvador.”).)

Accordingly, because

Oscar fails to raise any “new evidence,” the Court denied the
motion on this basis.
B. Clear Error of Law or Manifest Injustice
Oscar also asks the Court to reconsider the April 8,
2015 Order denying and dismissing the petition, and its holding
with regard to the prima facie case of wrongful retention and
the affirmative defense of grave risk of harm.
2-18.)

(Pet’r’s Mem. at

Oscar correctly identifies the proper standard of review

under Rule 59(e) of the Federal Rules of Civil Procedure;
mainly, that the Court’s ruling in this regard can only be
amended “to correct a clear error of law or prevent manifest

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injustice.”

(Id. at 1 (citing Hutchinson v. Staton, 994 F.2d

1076, 1081 (4th Cir. 1993) (additional citations omitted)).)
What Oscar failed to recognize, however, is that to prevail on
this motion, he must do more than “reargue the facts and law
originally argued in the parties’ briefs [and at trial].”
DynCorp Int’l, LLC, 17 F. Supp. 3d at 541 (quoting United States
v. Smithfield Foods, Inc., 969 F. Supp. 975, 977 (E.D. Va.
1997)) (citing Pacific Ins. Co. v. Am. Nat’l Fire. Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998) (“The Rule 59(e) motion may not be
used to relitigate old matters.”)).

This matter was fully

briefed prior to trial and well-litigated during the two-day
bench trial where both parties had a full and fair opportunity
to present all necessary evidence and argument.

The Court fully

considered all evidence and argument presented in this
indisputably difficult and emotional case.
While Oscar’s dissatisfaction with the Court’s ruling
is understandable, such dissatisfaction alone is not an adequate
basis for reconsideration.

It is clear that Oscar does not

agree with the factual findings of this Court and its
application of relevant legal authority.

(See, e.g., Pet’r’s

Mem. at 4 (“This Court incorrectly held that the Petitioner
agreed for the children to stay in the United States for an
indefinite period of time.”).)

However, Oscar relies on the

same cases the Court relied on in making its ruling, but

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disagrees with the Court’s application.

(Compare Pet’r’s Mem.

at 2-8, with Mem. Op. at 23-37 (both citing Maxwell v. Maxwell,
588 F.3d 245 (4th Cir. 2009); Miller v. Miller, 240 F.3d 392
(4th Cir. 2001); Papakosmas v. Papakosmas, 483 F.3d 617 (9th
Cir. 2007); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001);
Friedrich I, 983 F.2d 1396 (6th Cir. 1993); Friedrich II, 78
F.3d 1060 (6th Cir. 1996)).)
Ultimately, the Court finds that Oscar simply reargues
the facts and law originally cited by the Court in its
Memorandum Opinion, which would necessarily require the Court to
“reevaluate the basis upon which it made a prior ruling.”
DynCorp Int’l, LLC, 17 F. Supp. 3d at 541 (quoting Smithfield
Foods, 969 F. Supp. at 997).

This is not an appropriate basis

for relief under Rule 59(e). More importantly, Oscar fails to
identify any clear error of law or manifest injustice.
Accordingly, the Court denied the motion.
IV. Conclusion
For these reasons, the Court denied Oscar’s motion to
alter or amend the judgment.

June 3, 2015
Alexandria, Virginia

An appropriate Order shall issue.

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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