United States District Court, D. Arizona
ORDER
HONORABLE RANER C. COLLINS, SENIOR UNITED STATES DISTRICT
JUDGE
Pending
before the Court is Respondent Elsa Ruiz-Bours' Ex Parte
Motion/Request for Clarifying Order (Doc. 40) and Petitioner
Mauricio Margain's Motion to Strike (Doc. 42). Respondent
filed a response to the Motion to Strike, but no other
filings have been entered. The Court will deny
Ruiz-Bours' motion because any opinion by the Court would
be advisory. However, the Court sees no need to strike the
motion from the record.
Procedural
History
On
January 22, 2014, after a three-day bench trial, this Court
denied Margain's Petition for Return of Minor Child (Doc.
1), which asked the Court to order the return of Margain and
Ruiz-Bours' child to Margain in Mexico. (Doc. 28.) The
Court found that as a matter of law, the child had not been
unlawfully removed by Ruiz-Bours to the United States in
violation of the Hague Convention because the child was a
habitual resident of the United States. Id. at 7-10.
Furthermore, the Court determined returning the child to
Mexico was not warranted under the Hague Convention because
Margain had not brought his claim in District Court until
over one year after the child's removal and the child was
well settled in the United States. Id. at 11-12. The
Court stated, “the child will not be returned to
Mexico. The child remains in the custody of Respondent
until such time as custody of the child is determined by
a court of competent jurisdiction.” Id.
at 13 (emphasis added). The Court dismissed this case with
prejudice. Id. at 13. Margain appealed the
Court's determination, but the Ninth Circuit affirmed the
Court's decision in a memorandum opinion on March 3,
2015. (Doc. 39-1.)
Instant
Motions
Ruiz-Bours
filed the instant Motion for Clarification alleging that
Margain had subsequently filed for custody in the 2nd Family
Law Court in Tijuana, Baja California, Mexico (“Tijuana
Court”). (Doc. 40 at 2, ¶3.) The Tijuana Court
granted him custody in September 2014. Id. at
¶4. Ruiz-Bours alleges that Margain also filed for
custody in Pima County Superior Court (“State
Court”) but was denied. Id. at
¶¶5-6. She claims Margain removed the child to
Mexico in violation of the State Court's order.
Id. at 2, ¶¶7-8. However, the Tijuana
Court's order was subsequently reversed by the Supreme
Court of Justice of the Nation of Mexico (“Supreme
Court of Mexico”), with an order to return the child to
Ruiz-Bours on August 22, 2018. Id. at 3,
¶¶10-11. Margain asked the Pima County Court to
enter an order stating it had no jurisdiction over the
custody determination. Id. at 3 ¶13; 6.
Ruiz-Bours is fearful that if the State Court ultimately
rules that it does not have jurisdiction, Margain will not
only have violated both the Supreme Court of Mexico's
order as well as the Order of this Court but he will be able
to further prevent Ruiz-Bours from seeing her child.
Id. at 4, ¶14-15. Ruiz-Bours asks this Court to
issue an order clarifying that the child is a habitual
resident of the United States and directing the return of her
child. Id. at 12, ¶¶1-2.
Margain
argues that the Court should strike Ruiz-Bours' Motion
for Clarification because this case has been dismissed and no
further filings are permitted, but he does not address or
respond to Ruiz-Bours' allegations. (Doc. 42.) The Court
finds that Margain's argument does not make striking the
motion necessary.
Nonetheless,
the Court will deny the Motion for Clarification. The Court
affirms that its January 22, 2014 Order states that the child
was a habitual resident of the United States for the purposes
of the Petition for Return of Minor Child. (Doc. 28 at 9-10.)
However, the Court did not rule on any further custody
matters. In fact, this Court ordered that Ruiz-Bours maintain
custody of the child “until such time as custody of the
child is determined by a court of competent
jurisdiction.” Id. at 13. Ruiz-Bours concedes
that custody has been decided in the Tijuana Court and
overturned in the Supreme Court of Mexico, and the State
Court is currently determining whether it has jurisdiction to
enforce custody. The Court's Order does not extend to
these proceedings. “[A] federal court has neither the
power to render advisory opinions nor to decide questions
that cannot affect the rights of litigants in the case before
them.” Preiser v. Newkirk,422 U.S. 395, 401
(1975) (quotation marks and ...