United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United Slates District Judge.
On May
2, 2019, Petitioner Michael Abraham Farr
(“Father”) filed a motion entitled “Ex
Parte Motion for Expedited Hearing and an Order for the
Children to Remain in the State of Arizona.” (Doc. 7.)
Among other things, this motion sought emergency injunctive
relief against Respondent Bonnie Jeanene Kendrick
(“Mother”). (Id.)
On May
3, 2019, the Court issued an order denying Father's
motion. (Doc. 9.) This order explained that the Court was
construing Father's motion as a request for a temporary
restraining order (“TRO”) and that Father
hadn't established an entitlement to a TRO under the
rigorous standards governing such requests. (Id. at
2.) Specifically, the order concluded that (1) Father
hadn't demonstrated a likelihood of success on the merits
of his ICARA claim because the materials attached to the
petition suggest the children may be exposed to a grave risk
of physical or psychological harm, or otherwise placed in an
intolerable situation, if returned to Mexico, and (2) Father
hadn't shown a likelihood of irreparable harm in the
absence of a TRO because the petition was filed more than
eight months after the children were moved to Arizona and
Father hadn't presented any argument or evidence that
Mother is likely to flee from the United States, taking the
children with her, in the absence of a TRO. (Id. at
2-4.)
Now
pending before the Court is Father's “Ex Parte
Motion for an order for the Children to Remain in the State
of Arizona, ” which was filed on May 4, 2019. (Doc.
10.) This motion reasserts the request for emergency
injunctive relief that the Court denied in its May 3, 2019
order. In apparent response to the Court's earlier
analysis of the likelihood-of-success factor, the motion
states that “[o]n June 28, 2018, the Attorney
General's office in Playa del Carmen, Quintana Roo,
Mexico ordered that K.M.K.F be returned to Father's
custody after reviewing psychological exam results of Father,
Mother and K.M.K.F and determining that Father is not a
generator of violence and K.M.K.F is not a receiver of
violence. The order also stated that Mother was misusing a
protective order she had requested in order to prevent Father
from seeing their minor children.” (Id. ¶
13.) And in apparent response to the Court's earlier
analysis of the irreparable-harm factor, the motion states
that one of Father's relatives has “provided
financial assistance to Mother and made false statements to
the U.S. Consulate in order to obtain passports for E.G.F.
and E.C.F. which allowed Mother to leave Mexico. [This
relative] maintains a residence in Switzerland. He also
travels to Africa on a frequent basis. Father's concern
is that once [this relative] and Mother receive notice of
Father's Petition, [this relative] will arrange for
transportation of Mother, E.G.F. and E.C.F. to Switzerland or
Africa.” (Id. ¶ 23.) The motion also
states that the eight-month delay in filing suit can be
explained by Father's unsuccessful attempts to secure a
pro bono attorney through the State Department's attorney
referral network. (Id. ¶ 24.)
Father's
motion will be denied. Although the Court appreciates
Father's attempt to bring this additional information to
its attention, the new information could have been raised
earlier. See LRCiv 7.2(g)(1) (“The Court will
ordinarily deny a motion for reconsideration of an Order
absent a showing of manifest error or a showing of new facts
or legal authority that could not have been brought to its
attention earlier with reasonable diligence.”).
Additionally,
on the merits, the new information doesn't alter the
conclusions contained in the May 3 order. Notably, the motion
doesn't allege that Mother (or the relative discussed in
the motion) has ever threatened to move the children to
Switzerland or Africa in response by an effort by Father to
assert his custodial rights. Instead, it merely raises the
theoretical possibility of such a move.[1] And although the
June 2018 investigative findings by the Attorney
General's office in Playa del Carmen are helpful to
Father's position, it's not clear that the Attorney
General's office was aware of the serious allegations
contained in the email from Father's relative (which was
sent in August 2018) at the time it issued those findings. As
previously noted, a TRO “is an extraordinary remedy
never awarded as of right” and should “not be
granted unless the movant, by a clear showing, carries the
burden of persuasion.” (Doc. 9 at 2, citations
omitted.) Those standards continue to preclude Father's
request for emergency injunctive relief.
The
Court also notes that, in paragraph 26 of the motion, Father
asserts that “[o]n May 1, 2019, the Court issued a
summons, but the document was not uploaded to the ECF system
and Father has not received an electronic copy of the
summons. As a result, Father cannot serve Mother with the
Petition.” The Court will thus order the Clerk of Court
to reissue[2] the summons electronically, so that Father
may print it out, arrange for Mother to be served, and then
provide proof of service to the Court. As noted in prior
orders, the Court will give this matter expedited
consideration once such proof of service is provided.
Accordingly,
IT IS ORDERED that Father's “Ex
Parte Motion for an order for the Children to Remain in the
State of Arizona” (Doc. 10) is denied.
IT
IS FURTHER ORDERED that the Clerk of Court shall
reissue the summons as to Bonnie Jeanene Kendrick and make
the reissued summons available via CM/ECF.
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Notes:
[1] Compare Morgan v. Morgan, 289
F.Supp.2d 1067, 1070 (N.D. Iowa 2003) (granting TRO where
father presented evidence that “it is the intention of
[mother] to take the child out of Iowa in the very near
future; and that if a temporary restraining order is not
issued ex parte, [mother] will likely flee this
jurisdiction with the child upon receiving notice of
[father's] intent to seek a temporary restraining order
preventing them from doing so”); Application of
McCullough on Behalf of McCullough, 4 F.Supp.2d 411, 413
(W.D. Pa. 1998) (granting TRO application where Canadian
father presented evidence that mother had recently stated,
during a phone call, “that the ‘end time' was
near and that she and their children would not be returning
to Canada. [Father] understood the reference to the
‘end time' as a statement which related to his
wife's religious beliefs . . . that [her] sect . . . must
be ready to flee to Petra, Jordan if and when the
church's leader directs. Apparently, adherents believe
that only by escaping to Petra will God save them from an
apocalyptic event.”).
[2] On May 1, 2019, the Clerk of Court
processed Father's request for a summons. At that time,
Father (who is proceeding pro se) did not yet have
access to the CM/ECF system. Accordingly, the Clerk mailed a
copy of the summons to Father's address in Colorado
(which Father provided at the outset of the case) instead of
making it available via CM/ECF. Now that Father's request
for electronic access has been ...