United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
Pending
before the Court is Petitioner Michael Abraham Farr's
(“Father”) “Emergency Motion to Transmit
Exhibits to the 9th Circuit Court of Appeals.” (Doc.
84.) For the following reasons, the motion will be denied.
BACKGROUND
This is
a proceeding under the International Child Abduction Remedies
Act (“ICARA”), 22 U.S.C. § 9001 et
seq. It was brought by Father in an attempt to compel
his ex-wife, Mother, to return their twin children to Mexico.
(Doc. 1.) The Court held a three-day evidentiary hearing on
June 12-14, 2019. (Docs. 59, 61, 63.) During this hearing,
Mother and Father each offered various exhibits into
evidence. (Docs. 66, 67 [exhibit lists].)
On June
21, 2019, the Court issued an order denying Father's
petition. (Doc. 72.) That same day, the Clerk of Court
entered judgment (Doc. 73) and the Court issued an order
requiring the parties to retrieve their exhibits (Doc. 74).
Specifically, the exhibit-retrieval order provided that
“the exhibits marked and/or admitted in the
above-entitled case are to be returned to the parties/agents
of record. The parties/agents are directed to retain custody
of the exhibits until the case has been completely
terminated, including all appeals.” (Doc. 74.) This
order further provided that “the parties are to remove
the exhibits . . . by July 22, 2019, or the Clerk may destroy
or otherwise dispose of those exhibits.” (Id.)
On June
28, 2019, Father filed a notice of appeal to the Ninth
Circuit. (Doc. 76.)
On
August 5, 2019, the Court issued another order related to
exhibit retrieval. This order began by explaining that,
although the parties had previously been told they needed to
retrieve their exhibits by July 22, 2019, “[a]s of this
date, neither party has arranged to remove their respective
exhibits from the custody of the Clerk of Court.” (Doc.
83.) Thus, the Court gave the parties another warning:
“[T]he parties' marked and/or admitted exhibits
will be destroyed by the Clerk of Court on August 12, 2019,
unless the parties contact this Court's clerk . . . to
arrange for pick up of said exhibits.” (Id.)
On
August 8, 2019, Father filed the motion that is now pending
before the Court. (Doc. 84.) It is entitled “Emergency
Motion to Transmit Exhibits to the 9th Circuit Court of
Appeals.” (Id.) In its body, it states:
“Pursuant to Federal Rule of Civil Procedure 79
‘Records Kept by the Clerk' and Local Rule 79.1(b),
Petitioner Michael Abraham Farr respectfully requests all
nonelectronically submitted exhibits (including compact
discs) for both parties be transmitted to the 9th Circuit
Court of Appeals.” (Id.)
Between
August 9-12, 2019, Father made several ex parte
contacts with the Court in which he stated he had arranged
for a courier to retrieve his exhibits by the close of
business on August 12, 2019. However, as of the morning of
August 13, 2019, no courier had contacted the Court.
DISCUSSION
Both
this Court and the Ninth Circuit have promulgated rules
addressing the retention and transmission of exhibits
following trial. On the one hand, the advisory committee note
to Circuit Rule 27-14 explains that “[t]he parties
should be aware that frequently this Court does not have
access to trial exhibits because the district courts
typically return them to the parties” and thus suggests
that “[t]he parties may consider including portions of
relevant documentary exhibits that were admitted and/or
offered and excluded in the excerpts of record.”
Similarly, one of this Court's local rules-LRCiv
79.1(a)-provides that “[a]ll non-electronically
submitted exhibits offered by a party in civil or criminal
proceedings, whether or not received as evidence, shall be
retained after trial by the party or attorney offering the
exhibits, unless otherwise ordered by the Court.” And
another one of this Court's local rules-LRCiv 79.1(c)-
provides that “[i]f any party, having received notice
from the Clerk concerning the removal of non-electronically
submitted exhibits . . ., fails to do so within thirty (30)
days from the date of such notice, the Clerk may destroy or
otherwise dispose of those exhibits . . . .” All of
these authorities are consistent with the approach the Court
has followed in this case-the parties must retrieve their
exhibits after trial and are responsible for including copies
of any important exhibits in their excerpts of record.
On the
other hand, Circuit Rule 11-4.2, entitled “Retention of
Physical Exhibits in the District Court, ” provides
that “[f]or any exhibits not otherwise available on the
electronic district court docket, all physical and
documentary exhibits in all cases shall be retained in the
district court until the mandate issues unless requested by
the Court of Appeals.” Although this rule is consistent
in some respects with the authorities discussed above-none of
them suggest that trial exhibits simply get shipped en
masse to the Ninth Circuit whenever an appeal has been
taken-it is arguably inconsistent with them because it
suggests the entity responsible for retaining custody of
trial exhibits while an appeal is pending is the district
court, not the parties.
Finally,
yet another one of this Court's local rules-LRCiv
79.1(b)-provides that “[i]n the event an appeal is
prosecuted by any party, each party to the appeal shall
promptly file with the Clerk any non-electronically submitted
exhibits to be transmitted to the appellate court as part of
the record on appeal. Those exhibits not transmitted as part
of the record on appeal shall be retained by the parties who
shall make them available for use by the appellate court upon
request.” It is this local rule that provides the basis
for Father's pending motion.
The
Court declines to grant Father's motion because it would
result in the Clerk of Court shipping all of the exhibits in
this matter to the Ninth Circuit, even though the Ninth
Circuit hasn't requested them. It seems clear from
Circuit Rule 11-4.2 and the advisory committee note to
Circuit Rule 27-14 that this isn't the correct
...