East Sussex Children Services v. Morris et al

Filing 61

MEMORANDUM AND OPINION and ORDER denying 42 Motion for Reconsideration. Status Conference set for 6/17/2013 09:00 AM in Martinsburg District Judge Courtroom, 2nd Floor before District Judge Gina M. Groh. The Court STAYS the Return Order [Doc. 36]. The Court FURTHER ORDERS that the Respondents must return the child to the United Kingdom on July 27, 2013. Signed by District Judge Gina M. Groh on 2/27/13. copy mailed to counsel of record and respondents via cert. return rec't mail.(njz) (Additional attachment(s) added on 2/27/2013: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

EAST SUSSEX CHILDREN SERVICES,
Petitioner,
v.

CIVIL ACTION NO. 3:12-CV-141
(JUDGE GROH)

CARLY LOUISE MORRIS and
RALPH REGIS MORRIS,
Respondents.

MEMORANDUM OPINION AND ORDER DENYING RESPONDENTS’
MOTION FOR RECONSIDERATION
I. Introduction
On February 4, 2013, Respondents filed their “First Motion to Reconsider Order of
the Court” [Doc. 42]. On February 19, 2013, Petitioner filed its “Memorandum in Opposition
to Motion for Reconsideration” [Doc. 57]. On February 25, 2013, Respondents appeared
in person and by counsel, William M. Gruel. Petitioner was represented by counsel,
Stephen J. Cullen and Laura C. Davis. Upon consideration of the written and oral
arguments of counsel and for the following reasons, the Court DENIES Respondents’ “First
Motion to Reconsider Order of the Court.”
II. Facts and Procedural History
On December 3, 2012, Petitioner filed a Verified Petition for Return of Child to
United Kingdom. The Petition concerned a minor child, S.A.M. On December 5, 2012,
the Court entered an Order to Show Cause why the Verified Petition for Return of Child
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should not be granted. On December 11, 2012, Respondents, S.A.M.’s Mother and
Step-Father, filed their response. On December 13, 2012, the Court held a Show
Cause Hearing. At the Show Cause Hearing, the Court, among other things, set a Final
Evidentiary Hearing. The Final Evidentiary Hearing was held on January 4, 2013, and
the Court listened to testimony, received evidence, and heard arguments from the
parties. The Court issued its ruling granting the Petitioner’s Verified Petition on January
22, 2013, after Petitioner proved by a preponderance of the evidence that Respondents’
removal of S.A.M. from the United Kingdom was wrongful and in breach of Petitioner’s
custody rights under the Hague Convention and Respondents failed to present any
adequate defense. On February 4, 2013, Respondents, through recently obtained
counsel, filed a motion to reconsider. On February 19, 2013, Petitioner filed its
response.
III. Jurisdiction
This Court has jurisdiction pursuant to The Convention on the Civil Aspects of
International Child Abduction (“Hague Convention”)1 and the International Child
Abduction Remedies Act (“ICARA”). The district courts of the United States have been
granted original jurisdiction over actions arising under the Hague Convention. 42
U.S.C. § 11603.
Venue is appropriate because ICARA provides that a Hague Convention
petitioner can bring a Hague Convention action only in the place where the child is
located. 42 U.S.C. § 11603. In this case, S.A.M. resides in Hedgesville, West Virginia.
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Both the United States and the United Kingdom are signatories to the Hague
Convention.
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Therefore, she is located in the Northern District of West Virginia. Additionally, the
parties do not dispute that this Court’s jurisdiction and venue is proper.
IV. Discussion
Respondents have not cited a Federal Rule of Civil Procedure in filing their “First
Motion to Reconsider.” Moreover, the Federal Rules of Civil Procedure do not
expressly recognize motions for “reconsideration.” Instead, Rule 59(e) authorizes a
district court to alter, amend, or vacate a prior judgment, and Rule 60 provides for relief
from judgment. Generally, if a motion is “served not later than 28 days after entry of the
judgment,” it will be treated as a motion under Rule 59(e). See FED. R. CIV. P. 59(e);
see Small v. Hunt, 98 F.3d 789 (4th Cir. 1996) (citing Campbell v. Bartlett, 975 F.2d
1569, 1580 n.15 (10th Cir. 1992) (“Motions served within [28] days of judgment
ordinarily will fall under Rule 59(e), while motions served later fall under Rule 60(b))
(internal quotations omitted)).2 In this case, Respondents filed a “motion to reconsider,”
and they failed to identify the Federal Rule of Civil Procedure under which their motion
is brought. Out of an abundance of caution, the Court will consider Respondents’
arguments under both Rule 59(e) and Rule 60(b).
A. Rule 59(e)
1. Legal Standard
The United States Court of Appeals for the Fourth Circuit has repeatedly
recognized that a judgment may be amended under Rule 59(e) in only three

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The cited case law provided that motions served with 10 days of judgment
ordinarily will fall under Rule 59(e); however, Rule 59(e) has since been amended to
provide 28 days, rather than 10 days.
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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 the law
or prevent manifest injustice. See Gagliano v. Reliance Standard Life Ins. Co., 547
F. 3d 230, 241 n. 8 (4th Cir. 2008). A Rule 59(e) motion “may not be used to relitigate
old matters, or to raise arguments or present evidence that could have been raised prior
to entry of judgment.” Pac Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998) (quoting 11 Wright, Miller & Kane, Federal Practice and Procedure § 2810.1,
at 127-28 (2d ed. 1995)). If a party attempts to present newly discovered evidence in
support of its Rule 59(e) motion, it “must produce a legitimate justification for not
presenting the evidence during the earlier proceeding.” Id. (internal citations and
quotation marks omitted). “In general, reconsideration of a judgment after its entry is an
extraordinary remedy which should be used sparingly.” Id. (internal citations and
quotation marks omitted).
2. Analysis
In this case, Respondents filed their motion to reconsider within twenty-eight
days of the entry of judgment as the judgment was delivered to the parties in person at
a hearing on January 22, 2013 and their motion was filed on February 4, 2013.
Therefore, Respondents’ motion is timely under Rule 59(e).
Although a motion for reconsideration under Federal Rule of Civil Procedure
59(e) is committed to the discretion of the Court, as outlined earlier, the Fourth Circuit
has recognized only three grounds for amending an earlier judgment: “(1) to
accommodate an intervening change in controlling law; (2) to account for new evidence

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not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.”
Pac. Ins. Co., 148 F.3d at 402-03. Respondents have not cited any specific ground to
amend this Court’s judgment. However, the Court categorizes the Respondents’
arguments as seeking an amended judgment (1) to account for new evidence not
available at trial and (2) to correct a clear error of law or prevent manifest injustice.
There has been no intervening change in the law since entry of this Court’s Return
Order, and Respondents have not alleged an intervening change in law.3 Petitioner
argues in its response that no grounds exist for granting Respondents’ motion pursuant
to Rule 59(e).
a. Newly Discovered Evidence
Respondents present the Final Psychological Report of Dr. Andrew L. Pickering
of the Stuart Family as evidence that “S.A.M. would be placed in an intolerable situation
were she to be returned to the United Kingdom and forced against her will to live with
her maternal grandmother or her biological father.” ([Doc. 42], p. 18).
In the Fourth Circuit, the standard governing relief on the basis of newly
discovered evidence is the same whether the motion is brought under Rule 59 or Rule
60. United States Fidelity & Guaranty Co. v. Lawrenson, 334 F.2d 464, 475 n. 2 (4th
Cir.), cert. denied, 379 U.S. 869, 85 S. Ct. 141 (1964). Therefore, Rule 59 requires that
a party demonstrate:

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The Court reviewed the United States Supreme Court’s recent opinion Chafin v.
Chafin, 2013 WL 598436, __ S. Ct. __ (Feb. 19, 2013), in rendering this opinion.
However, Chafin does not present an intervening change in the law relevant to this
Court’s decision as Chafin focused on whether the return of a child to a foreign country
pursuant to a Convention return order does not render an appeal of that order moot. Id.
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(1) the evidence is newly discovered since the judgment was entered; (2)
due diligence on the part of the movant to discover the new evidence has
been exercised; (3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and (5) the evidence is such that is likely to
produce a new outcome if the case were retried, or is such that would
require the judgment to be amended.
Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989) (citations omitted).
Respondents fail to demonstrate even one of these five factors. Respondents do not
contend that the report is “newly discovered evidence.” In fact, Respondents do not
allege that they newly discovered the report after the hearing or that they could not
have, with reasonable diligence, discovered and produced such evidence at the
hearing. Rather, the report is simply evidence that was not submitted to the Court at the
prior evidentiary hearing that the Respondents now seek to rely upon. “Evidence that is
available to a party prior to entry of judgment, therefore, is not a basis for granting a
motion for reconsideration as a matter of law.” Quillin v. C.B. Fleet Holding Co., Inc.,
328 Fed. Appx. 195, 203 (4th Cir. 2009) (quoting Boryan, 884 F.2d at 771).
Respondents failed to meet their burden or even to meaningfully address the Boryan
standard. Respondents have not shown that the report contained information not
available prior to the final evidentiary hearing. Accordingly, Respondents have not
carried their burden to show that the report could properly be considered.
b. Correct a Clear Error of Law or Prevent a Manifest Injustice
A Rule 59(e) motion “is not intended to allow for reargument of the very issues
that the court has previously decided.” DeLong v. Thompson, 790 F. Supp. 594, 618
(E.D. Va. 1991), aff’d, 985 F.2d 553 (4th Cir. 1993) (unpublished). A party may not
“raise arguments which could have been raised prior to the issuance of the judgment,
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nor may they be used to argue a case under a novel legal theory that the party had the
ability to address in the first instance.” Pac. Ins. Co., 148 F.3d at 403.
In this case, Respondents argue that the Court erred in determining that
Respondents removed S.A.M. in breach of Petitioner’s custody rights under the United
Kingdom’s laws. Essentially, Respondents argue that Petitioner did not have any
custody rights over S.A.M. and that Respondent Carly Morris, Mother, had sole custody
rights over S.A.M. This is simply a reargument of the very issue that the Court
previously decided. The crux of the Respondents’ argument is that an institution, such
as Petitioner, cannot have custody or parental rights under the Hague Convention and
applicable case law. Indeed, Respondents attempt to distinguish all cases cited by the
Court in its opinion on the basis that the parties were parents and not an institution. The
court will briefly note that this argument is unavailing as multiple courts have held that
administrative agencies or other bodies may also claim custody rights. In Re
S.J.O.B.G., 292 S.W.3d 764 (Tex. App. 2009) (custody rights claimed by the Child
Welfare Services of Norwegian Municipality); L.H. v. Youth Welfare Office of
Wiesbaden, 568 N.Y.S.2d 852 (Fam. Ct. 1991) (holding that where a child is placed by
the German Child Welfare Office into foster care, the child’s biological mother’s custody
rights can be taken by the court declaring the child a ward of the German court); Brown
v. Orange Cnty. Dep’t of Soc. Servs., 91 F.3d 150, 1996 WL 366366 (9th Cir. 1996)
(alleging wrongful removal of child by child welfare agency). Additionally, as the
Petitioner points out, the Hague Convention recognizes that “[a] government agency
and even a court may be considered under the Convention to have rights of custody of

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a child and those rights of custody are treated no differently than a parent’s rights of
custody under the Convention.” ([Doc. 57], p. 5) (citing Hague Convention, art. 3).
Respondents also attempt to relitigate the issue of custody rights, and
Respondents argue that Petitioner never had custody rights or a ne exeat right.
Additionally, Respondents argue a ne exeat right does not convey “custody rights”
under the Hague Convention. In support of Respondents’ argument, they rely on Croll
v. Croll, 229 F.3d 133 (2d Cir. 2000), aptly pointing out that the case was not cited by
this Court. The Court readily admits it did not rely on or cite Croll v. Croll, as that case
was abrogated by the United States Supreme Court’s decision in Abbott v. Abbott, 560
U.S. __, 130 S. Ct. 1983 (2010). Therefore, the United States Supreme Court’s holding
in Abbott guided this Court’s analysis.
In addition, Respondents “plead with the court to consult with their daughter and
step-daughter, S.A.M., to investigate her viewpoint and assess her desires to remain in
the United States with her mother, step-father and three step-sisters and her feeling
about being returned to the United Kingdom.” ([Doc. 42], p. 18). Respondents did not
raise this defense at any point prior to this Court’s January 22, 2013 Order. Therefore,
this argument must be disregarded in light of the “overwhelming authority that a party
should not be permitted to raise new arguments or legal theories . . . on a motion to
alter or amend the judgment under Rule 59(e).” Pac. Ins. Co., 148 F.3d at 404.
Upon examining Respondents’ arguments, they have failed to demonstrate that
this Court committed a clear error of law or that the judgment would effect manifest
injustice on the moving party. Because Respondents have failed to satisfy any of the

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three permissible grounds upon which a Rule 59(e) motion may be established, the
Court DENIES the Respondents’ Motion for Reconsideration under Rule 59(e).
B. Rule 60(b)
1. Legal Standard
Before a party may seek relief under Rule 60(b), a party must first show
“timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and
exceptional circumstances.” Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993) (quoting Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.
1984)). After a party has satisfied the initial inquiry, the moving party must demonstrate
at least one of the six listed grounds in Rule 60(b). Werner, 731 F.2d at 207. Rule
60(b) provides:
Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). The moving party “must clearly establish the grounds therefor to
the satisfaction of the district court,” and those grounds “must be clearly substantiated
by adequate proof.” In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992) (citations omitted).

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2. Analysis
As a preliminary matter, Respondents have not met the threshold inquiry of
“timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and
exceptional circumstances.” Dowell, 993 F.2d at 48 (citation omitted). Although the
motion was timely because it was filed within one year of the judgment, Respondents
have not alleged any of the remaining three requirements.
Also, Respondents have not specifically cited grounds for relief under Rule 60(b).
However, the Court has construed Respondents’ arguments as (1) newly discovered
evidence and (2) other reasons justifying relief. The Court briefly addresses
Respondents’ arguments, assuming arguendo, they could meet the threshold
requirements.
a. Newly Discovered Evidence
Respondents present the Final Psychological Report of Dr. Andrew L. Pickering
of the Stuart Family as evidence that “S.A.M. would be placed in an intolerable situation
were she to be returned to the United Kingdom and forced against her will to live with
her maternal grandmother or her biological father.” ([Doc. 42], p. 18).
In the Fourth Circuit, the standard governing relief on the basis of newly
discovered evidence is the same whether the motion is brought under Rule 59 or Rule
60. United States Fidelity & Guaranty Co. v. Lawrenson, 334 F.2d 464, 475 n. 2 (4th
Cir.), cert. denied, 379 U.S. 869, 85 S. Ct. 141 (1964). For the reasons stated in the
Court’s Rule 59(e) analysis supra, Respondents have not shown that the report
contained information not available prior to the final evidentiary hearing. Therefore, the

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report does not qualify as “newly discovered evidence” under Rule 60. Accordingly,
Respondents have not carried their burden, and the Court cannot properly consider the
report.
b. Other Reasons Justifying Relief
Rule 60(b)(6) is a catchall provisions allowing a court to grant relief for any
reason, unless such relief has been limited by case law. Dowell, 993 F.2d at 48. The
Fourth Circuit has stated that the reason must be “extraordinary.” See Aikens v.
Ingram, 652 F. 3d 496, 500 (4th Cir. 2011) (en banc). If the reason asserted for the
Rule 60(b)(6) motion “could have been addressed on appeal from the judgment, [the
Fourth Circuit] ha[s] denied the motion as merely an inappropriate substitute for an
appeal.” Id. (external citation omitted).
Respondents have simply not demonstrated, or even alleged, extraordinary
circumstances to alter or amend the judgment. Respondents’ arguments attempt to
relitigate the custody and wrongful removal issues already decided by the Court. This is
contrary to Rule 60(b)’s purpose, “not to rehash those issues which have already been
addressed in an earlier ruling.” CNF Constructors, Inc. v. Dohohoe Constr. Co., 57
F.3d 395, 401 (4th Cir. 1995).
Because Respondents have failed to satisfy Rule 60(b)’s threshold inquiry and its
specific factors, the Court DENIES the Respondents’ Motion for Reconsideration under
Rule 60.
C. Return Order
Petitioner requests in its response that the Return Order be stayed until eight

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weeks after Ms. Morris’ due date. Petitioner suggests that the Respondents be ordered
to return the child to the United Kingdom on July 27, 2013. Upon careful consideration
of Petitioner’s request, the Court finds that ordering a return eight weeks after Ms.
Morris’ due date will permit Ms. Morris to accompany the child back to the United
Kingdom. Also, eight weeks allows additional time after the due date in the event Ms.
Morris delivers late.
V. Conclusion
Accordingly, the Court DENIES the Respondents’ “First Motion to Reconsider
Order of the Court” [Doc. 42]. The Court STAYS the Return Order [Doc. 36] until eight
weeks after Ms. Morris’ due date. The Court FURTHER ORDERS that the
Respondents must return the child to the United Kingdom on July 27, 2013. The Court
FURTHER ORDERS that Respondents and S.A.M. are subject to the same travel
restrictions as stated in the Court’s Memorandum Opinion and Order Granting the
Petition [Doc. 36], however S.A.M. has permission to leave the counties of Berkeley,
Jefferson, and Morgan and the State of West Virginia for school field trips. Last, the
Court FURTHER ORDERS that a Status Hearing will be held on June 17, 2013 at 9:00
a.m. in the Martinsburg District Judge Courtroom to confirm the details of S.A.M.’s
return to the United Kingdom.
The Clerk is directed to mail a certified copy of this Order to all counsel of record
and Respondents.
DATED: February 27, 2013

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